A Supreme Court judge has said he would dismiss Barry Doyle’s appeal against his conviction, rejecting the argument that statements made while he was detained should be excluded because a solicitor was not present throughout his detention and questioning.
Mr Justice Donal O’Donnell delivered his judgment on 18 January 2017. He said Doyle had considerable access to a solicitor, including advice and representation while in custody, but did not have a solicitor present for the entire detention.
The court’s judgments expressed different views on whether the Constitution guarantees a solicitor’s presence during questioning. O’Donnell said he agreed with Mr Justice Peter Charleton that the Constitution guarantees access to a lawyer but does not require the lawyer’s presence throughout detention and questioning. He concluded that the Constitution did not require exclusion of a statement shown to have been made voluntarily after access to and advice from a lawyer.
O’Donnell noted that the Supreme Court’s earlier decision in DPP v Gormley and White had established a constitutional right of access to a solicitor before interrogation or the taking of forensic samples. In his view, comments in that case about a solicitor being present during questioning were obiter: the issue was not raised by its facts or arguments.
He considered decisions from the European Court of Human Rights, the United States and Canada, but said they did not establish that the Irish Constitution requires a bright-line rule of a lawyer’s presence throughout detention. He also pointed to the 2015 Code of Practice on Access to a Solicitor by Persons in Garda Custody, which permits a solicitor to attend questioning where necessary under the legal aid scheme.
The judgment said the trial judge had found Doyle’s confession voluntary beyond reasonable doubt after hearing the evidence and reviewing interview recordings. O’Donnell said the admission of the statement was not unfair. He was not persuaded that the Constitution required excluding it solely because a solicitor was not present at every stage.
O’Donnell also addressed arguments about inducement and the appellate court’s role. He acknowledged the force of another judge’s analysis of inducement but said he would not set aside the trial judge’s findings based on interview passages considered by the appellate court without reviewing the full interviews. He said he would dismiss the appeal.
This is O’Donnell’s judgment and stated position. The supplied extract does not set out the Supreme Court’s formal order or the appeal’s overall disposition.