The Court of Criminal Appeal has refused Liam Bolger’s application for a certificate allowing him to appeal to the Supreme Court on two questions about police questioning and adverse inferences from silence.
The application followed the court’s 2013 refusal of leave to appeal against Bolger’s murder conviction. In a motion dated 4 March 2014, he sought certification under section 29 of the Criminal Justice Act 1924, as amended. The court heard the application on 27 March 2015 and delivered judgment on 24 July 2015.
Bolger’s proposed questions concerned whether a caution about possible inferences from silence, given when a person is questioned about the offence for which they were arrested, was sufficient to make the interviews admissible at trial for a different offence. The second asked whether a trial judge should direct a jury to give appropriate weight to legal advice to remain silent, and draw an inference only if satisfied beyond reasonable doubt that the accused had no explanation consistent with innocence.
The case arose from Bolger’s conviction by majority jury verdict at the Central Criminal Court on 17 November 2009 for the murder of Christopher Barry. The source judgment says Barry was shot by a lone gunman at Byrne’s bookmakers in Killester on 13 September 2008. The prosecution case included evidence linking a white Renault Kango van driven by Bolger with a Suzuki motorcycle used by the gunman, as well as CCTV, identification evidence and mobile-phone movements.
Bolger had been arrested in connection with a firearms offence after Gardaí stopped him in Tallaght. He was later questioned about the murder associated with that offence. The appeal court had previously held that the questioning was permissible in the circumstances, where the arrest was not a device to enable interrogation. Bolger had access to a solicitor and was advised about the inference provisions; the trial judge found beyond reasonable doubt that he understood them. The appeal court said the evidence before it showed no basis to infer that a separate, identical warning about a potential murder charge, or different legal advice, would have changed his responses.
The court said an applicant seeking a section 29 certificate must establish a point of law of exceptional public importance, with widespread application, and show that it is in the public interest for the Supreme Court to decide it. It concluded that the proposed questions lacked sufficient gravity and importance, did not meet the exceptionality and public-interest criteria, and did not have the required wider application.
The court therefore refused the certificate. It noted that the legislation marked a significant development but said its legal implications could evolve through appellate decisions in individual cases. It added that general guidance on cautions could be provided through regulations under the statutory power.