The Supreme Court dismissed Thomas Anthony O’Brien’s appeal, ruling that statements he made after consulting a solicitor at Pearse Street Garda Station were admissible. The decision did not revisit the trial judge’s ruling excluding statements made before the solicitor arrived; that ruling was not challenged in the appeal.
O’Brien had been arrested under section 4 of the Criminal Justice Act 1984 at 1pm on 3 March 1999 and detained at Pearse Street Garda Station in Dublin. He requested a solicitor at 3.40pm. Gardaí contacted Mr Gaffney, a busy sole practitioner whose offices were in Tallaght. Gaffney arrived at 8.22pm, after O’Brien’s detention had been extended, and spoke with him for about half an hour. Gardaí then interviewed O’Brien until 11.25pm, with a 20-minute break.
The trial judge found that O’Brien’s constitutional right to legal advice had been breached because Gardaí must have known that choosing Gaffney would cause considerable delay. Statements made before the solicitor arrived were ruled inadmissible. The Supreme Court appeal concerned only statements made after the consultation.
Delivering judgment on 5 May 2005, Mr Justice McCracken said the delay in providing legal advice was the breach; he concluded that it ended once O’Brien received advice. The court held that his detention remained within the authority of section 4, subject to the section’s requirements and time limits. Even if the custody had been unlawful during the delay, the court said any unlawfulness ceased when the solicitor attended and was consulted.
The court also held that later statements would be tainted if they resulted from information obtained while O’Brien’s rights were being breached. It concluded, however, that statements not resulting from material obtained during the breach were not thereby inadmissible, provided the detention was lawful when they were made. On that basis, the post-consultation statements had been rightly admitted.
O’Brien also challenged the trial judge’s handling of a potential witness who knew a juror and comments in the jury charge about conspiracy and the defence’s language. The Supreme Court found no prejudice from the decision not to allow cross-examination of the witness, and no impropriety in the challenged comments. It dismissed the appeal.