The Court of Appeal has quashed the conviction of a man who was 14 at the time of an offence, ruling that the adult who accompanied him during Garda interviews did not understand his role could include requesting a solicitor for the teenager.
The court said it would hear submissions on whether to order a retrial. It did not decide that question in this judgment.
The appellant was convicted in April 2013 of engaging in a sexual act with a child under 15, contrary to section 2(1) of the Criminal Law (Sexual Offences) Act 2006. He received a three-year prison sentence, suspended for five years, in July 2013. His appeal challenged the conviction and the admission of statements he made during interviews.
The judgment describes the offence as a single act involving the appellant’s six-year-old niece, on a date between 2005 and 2006 that was not known. The appellant was arrested in January 2009, aged 17 years and four months. His father was present when Gardaí explained his right to a solicitor, but neither he nor the appellant requested one.
The father was excluded from the interviews after a Garda requested it, and a peace commissioner, Patrick O’Byrne, attended as the “responsible adult”. O’Byrne had not known the appellant before the arrest. He testified that he understood his role as observing the interviews and ensuring there was no abuse by Gardaí; he did not think it was his responsibility to seek a solicitor. He also said he would consider obtaining a solicitor if his own son were in that situation.
The appellant denied wrongdoing in his first interview, then made admissions in the second and affirmed them in the third. Evidence at trial was that he appeared upset and cried. The trial judge admitted the statements, finding that no threat had been made and that the interviews were fair and free from inducement.
The Court of Appeal said the responsible adult had the right to request a solicitor for the appellant during questioning. Because O’Byrne did not consider that possibility, the court held he was incapable of fulfilling the statutory role contemplated by section 60 of the Children Act 2001. The court said it was impossible to know whether he would have requested a solicitor if the matter had been explained, though it considered there was reason to believe he might have taken the prudent course he described for his own son.
The court quashed the conviction and reserved the question of a retrial for further submissions.