The Supreme Court has upheld the Court of Appeal’s decision that alleged admissions made by BK during a psychological assessment in wardship proceedings should not have been excluded from evidence at her criminal trial. The Court did not decide whether BK should be retried; it directed that the question be considered at a separate hearing after further submissions.
BK had been assessed on the High Court’s direction as part of an inquiry into whether contact with her three children, identified in the judgment as A, B and C, would be safe. The interviews were conducted by a psychologist, referred to as Dr O, and included a polygraph. BK was not in Garda custody, and the Gardaí did not take part in the assessment. The judgment says the assessment was not confidential and that its terms allowed relevant information to be shared with other agencies.
The trial judge excluded the interview material after a hearing outside the jury’s presence, finding that the interviews were not voluntary and fell below basic fairness. The jury was then directed to find BK not guilty because there was insufficient other ostensibly incriminating evidence. The Director of Public Prosecutions appealed under section 23 of the Criminal Procedure Act 2010. The Court of Appeal reversed the exclusion ruling, quashed the acquittal and ordered a retrial.
In the Supreme Court, BK argued that the assessment was effectively compelled, that the polygraph and interview process were unfair, and that safeguards comparable to those used for suspects in custody were required. The DPP argued that the interviews were neither custodial nor compelled and that the material could be considered by a jury.
The Supreme Court said the detailed safeguards applying to custodial interviews do not automatically apply to a wardship assessment. It nevertheless affirmed a general requirement of basic fairness: a judge may scrutinise a confession and exclude it where the way it was obtained makes it unreliable or unfair. The Court found no basis for exclusion here, concluding there was nothing to show that the polygraph was used to pressure BK into particular answers or that the interviews involved coercion equivalent to detention.
The ruling concerns admissibility only. The Supreme Court affirmed the Court of Appeal’s decision that the alleged confession material should not have been excluded, but said a separate hearing and further submissions were required to decide whether to order a retrial.