The Supreme Court has affirmed the Court of Appeal’s order in an appeal concerning an accused person’s opportunity to respond to a reckless endangerment charge during the investigation. The Court rejected the claim that Article 38 of the Constitution gave the appellant a free-standing right to be arrested and interviewed so that an unsworn account could be put before a jury.
The case arose after a 2016 road traffic incident in Edgeworthstown, County Longford. The prosecution case, as outlined in the judgment, was that the appellant drove dangerously while evading Gardaí and nearly collided with an oncoming vehicle near two children. He was first charged with summary road traffic offences. Weeks later, he was charged with indictable reckless endangerment under section 13 of the Non-Fatal Offences Act 1997. He was not detained or questioned about that charge.
At Longford Circuit Court, after a jury had been empanelled but before the trial began, the defence sought to have the charges dismissed on grounds of fundamental unfairness. The judge dismissed the endangerment charge, reasoning that without an interview memorandum the appellant would be forced to testify to put forward a defence. The appellant did not, however, provide an account of what he would have said.
The Supreme Court said that application should have been considered during the trial, after evidence had been heard. A trial judge considering alleged investigative unfairness should assess the prosecution case and the claimed prejudice in context, through a voir dire, and decide whether any unfairness can be remedied. Stopping a trial is an exceptional step.
The Court said a person under investigation is entitled to basic fairness, including an opportunity to answer charges in the relevant circumstances. But an investigation is not a trial, and there is no constitutional right to be detained for questioning or to have an unsworn statement admitted as evidence. Whether a statement is admissible remains for the trial judge under the rules of evidence.
The appellant had not identified what he would have said or shown how the absence of an interview prejudiced his right to a fair trial or compromised his right to silence. The Court answered “no” to the question in the case stated: the trial judge was not correct to direct a verdict of not guilty on the endangerment count in those circumstances. It affirmed the Court of Appeal’s order.