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J.M. (A MINOR) , Plaintiff V. MEMBER IN CHARGE OF COOLOCK GARDA STATION, Defendants.
Record No. 648 S.S./2013
[2013 5 JIC 0304]
In the case of J.M. v member in charge Coolock garda station  5 JIC 0304 HC, The applicant J.M. is asking for an order of Habeas Corpus stemming from his interview in Coolock garda station North Dublin after he was arrested on suspicion of having committed an earnest offence under the misuse of drugs act 1977 S15(A). J.M. is a vulnerable juvenile with mental health issues. The refusal of the garda to permit his solicitor to be present during the interviews is in breach of constitutional rights and therefore his detention was unlawful.
BODY OF FACTS
J.M. was arrested and brought to Coolock Garda Station North Dublin on April 16th 2013 under the misuse of drugs act 1977 S15(A). Kelleher O’Donoghue from Lyons Solicitors represented J.M. Sworn Affidavits from Gareth Noble and Maura Kiely ( two solicitors from the firm ) were received grounding this application. The application for an enquiry was heard by the president of the high court, who ordered J.M. be brought before the court that evening due the fact that the applicant was a minor with mental health issues. When the applicant arrived at court the Gardaí agreed he be allowed out on bail. Following a full inquiry into the circumstances. The matter was adjourned until the 3rd of May 2013 to allow the judge to consider the full details of the case received from both J.M. solicitors and the for the Gardai.
It is evident from Gareth Noble’s Affidavit he was aware of the applicant’s position with regard to being interviewed by the Gardai relating to the findings of a large quantity of drugs. The day before J.M. was due to be questioned, the 15th of April 2013 Gareth Noble sent a fax to Garda Cummins advising of J.M.’s age and sent ample evidence of his mental impairment and vulnerability. He requested he be present during any interviews between the minor and the garda given the serious mental health issues and the fact that he is a juvenile.
THE HIGH COURT DECISION
Having considered all the arguments from both sides the judge refused to release the applicant under the following grounds
The detention of the applicant by the Gardaí was arranged in advance by way of an appointment giving the applicant ample time to seek legal advice from solicitors.
- It was noted the applicant was entitled to be accompanied by a parent or suitable adult to the Gardaí interviews but he attended alone.
- If a solicitor was present would they have been of beneficial advisory power or would they have just acted as a mere observer.
- It was not a malicious intent by the Gardai not to allow the applicant have a solicitor present for the interview.
- If a parent or adult was present at the interview would they have been adequately able to assist J.M. in relation to legal stance
- Habeas Corpus was set up initially to prevent governments detaining individuals indefinitely without cause. It should not be used on the conduct of interviews.
- The right to legal advisory at the pre -trial stage and in particular prior to the said interview was well established however, that right does not grant the entitlement to have a solicitor present during the actual interview cate v majesty
- With regard to the European Court Of Human Rights into domestic law there is an obligation on state departments to act in a matter compatible with the convention the court is not obliged to interpret the convention as a substitution for the Irish Constitution. Nor is the court empowered to directly apply convention provisions.
The law under question in this case is The Criminal Justice Act 1984. When a person is detained in a garda station they must be informed that they are entitled to consult a solicitor. It Is the detainees fundamental right to be advised that they may request a solicitor be present at an interview.
Sheehan J refused the application on the basis of previous case law where the Supreme Court decided that a solicitor was not required to be physically present in Lavery v member in charge Carrickmacross garda station 1999 2 IR 390 1999 IESC 29
With regard to the European Court of Human right’s ECHR Salduz v Turkey 2009 49 EHRR 19 2008 26 BHRC 223 and Panovits v Cyprus 27 BHRC 464 2008 ECHR 1688 neither of the above cases conclude that there is a legal right to have ones solicitor present at police interviews. It also important to note that although both applicants in the above cases were 17 year old minors they had been denied access to legal advice prior to their police interviews. This is not the situation In J.M v Member in charge of Coolock Garda Station 5 JIC 0304 HC. Similarly, in relation to Cadder v Her Majesty Advocate (SCOTLAND) 2010 1 WLR 2601 2010 SLT 1125 2010 SCL 1265 2010 UKSC 43
CONSTITUTION ART 40.4.2 the case is also misconceived to this applicants case.
The applicant J.M. is asking for habeas corpus stemming from his interview at Coolock garda station without a solicitor present J.M is a minor who has mental health issues he was arrested in connection with drug charges.
Having read the case and the applicants arguments I am satisfied the court’s decision to refuse his release was the correct decision for the following reasons
- It is clear that the applicant had sufficient time to seek legal advice prior to the interview as it was an arranged appointment.
- The applicant was permitted to bring his parent or responsible adult to the interview but he declines and arrived by himself.
- All of the precedent cases that were used to argue his case although similar were not the same and none prove there had to be a solicitor present he did have access to legal advice prior to the interview and was never prevented from getting same
In the case of Lavery vs Member in charge of Carrickmacross Garda Station 1999 2 IR 390 1999 IESC 29
- it was not required that a solicitor be present during an interview. The Applicant could of asked to speak to a solicitor over the phone during the course of the interview.
- And finally I’m not sure of the details of the drug charge whether the Applicant was caught with the drugs on him and how clear cut the charge against him was having a solicitor present would have actually changed the outcome of his trial for drug charges
- In my opinion I feel there should be exceptions to the rule of having a solicitor physically present during a police interview. It should be a case by case basis and not blanket one rule suits all.
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