Supreme Court: Accused did not have right to be interviewed by gardaí for purpose of having memorandum put before jury

Supreme Court: Accused did not have right to be interviewed by gardaí for purpose of having memorandum put before jury

The Supreme Court has rejected an appeal from an accused who claimed that he was entitled to be interviewed by gardaí during the investigation stage of alleged crimes.

It was said that the accused was entitled to have his defence placed on the record while being questioned by gardaí and that the statement could be adduced by way of defence at trial. However, no such interview took place in the case.

Delivering the judgment of the court, Mr Justice John MacMenamin held that the full range of fair trial rights do not apply at the investigation stage of criminal activity because the courts were not involved at that stage. Rather, the question was whether the investigation was conducted within fair procedures so that a trial in due course of law could take place.

In this case, the accused’s defence was hypothetical and there was no suggestion that the accused would have to give evidence in the case.


In December 2016, the accused was allegedly engaged in a car chase with gardaí in which he was accused of driving in a dangerous manner. Initially, he was arrested, cautioned and charged with a number of summary offences under the Road Traffic Act 1961 as amended, including dangerous driving, driving without a licence and driving without insurance. As the charges were for summary offences, there was not power to detain the accused for questioning.

The next day, the accused was brought in custody to Athlone District Court and the case was remanded, with a file being prepared for the DPP. Later, in February 2017, the accused appeared in Cavan District Court when the summary charges were remanded but where he was also charged with the indictable offence of reckless endangerment. The gardaí were entitled to detain the accused for interview for this offence, but no questioning occurred. The accused did not respond to the charge.

The matters were eventually listed for trial in November 2017. At the outset of the hearing, an application was made by the accused in the absence of the jury. Essentially, it was argued that the lack of an interview for the indictable offence was a breach of fair trial procedures because there was no memorandum which could be put before the jury. It was submitted that the accused would have to give evidence in order to have his version of events put before the jury.

The trial judge held that the endangerment charge should be dismissed on the basis that the lack of an interview memorandum was an “insurmountable hurdle” which forced the defendant to give evidence in his defence. It was reasoned that this was not a trial in due course of law.

The DPP appealed by way of case stated to the Court of Appeal on the issue of whether the judge was correct to direct a verdict of not guilty on the endangerment charge. The Court of Appeal allowed the appeal and the accused was granted leave to appeal to the Supreme Court.

Supreme Court

Mr Justice MacMenamin identified two issues in the appeal. First, the court was required to consider the procedural approach of the Circuit Court judge to the application. Second, the court was required to consider whether an accused was entitled to have their defence placed on the record while being questioned and having such statement adduced by way of evidence at trial.

On the first issue, the court held that the trial judge did not adopt the correct procedure in hearing the application prior to any evidence being adduced. It was held that applications to halt trials should generally be made during the course of a trial in light of evidence which had actually been adduced rather than on the basis of hypothesis (see The People (at the suit of the Director of Public Prosecutions) v. CC [2019] IESC 94). The trial judge should have made a decision based on whether the trial process would permit the jury to deliver its verdict fairly.

Turning to the second issue, the court noted that it was required to consider how far the Article 38 right to a fair trial could “reach back” into the investigation stage of a prosecution. The court emphasised that the rights of accused people in pre-trial custody were important to the extent that they affected the fair trial rights of those people.

The court went on to consider cases such as DPP v. Gormley & White [2014] 2 I.R. 591 and Salduz v. Turkey Application No. 36391/02, [2009] 49 E.H.R.R. 19. It was noted that the events of an investigation could “profoundly affect the fairness of a trial” but the courts were not tasked with directly overseeing these investigations. Instead, the investigations had to be assessed from the perspective of ensuring a fair trial for the accused.

In emphasising this point, the court stated: “An investigation is not a process presided over by a decision-maker where each side may have a right to testify, to test the evidence of the other side, and to be examined and cross-examined. It is, rather, a significant step in a process where the full Article 38 rights will be applied at the trial, if a trial takes place.”

Further, the court noted that the question as to whether an unsworn statement by an accused should be adduced in evidence was a matter for the trial judge to determined in accordance with the rules of evidence. There was no guarantee that a statement would be admitted or what weight would be attributed to any statement (McCormack v. The Judge of the Circuit Court & The Director of Public Prosecutions [2008] 1 ILRM 49).

The court also rejected the accused’s submission that the present case was analogous to “lost evidence” cases. Rather, the court held that the accused complained of a lost opportunity to adduce the memorandum, which was unspecified in nature. Lost evidence cases required an identification of evidence that was actually lost or unavailable and which was material to the real issues in the case. Trials were not to be restrained on remote or hypothetical bases (Savage v. DPP [2009] 1 I.R. 185).

In this case, it had not been shown that the accused was required to testify in breach of his fair trial rights. It was said that “the trial judge’s conclusion that the appellant’s right to silence had been compromised was based on a misapprehension that the appellant had a right under Article 38 to have an unsworn statement made in garda custody and admitted in evidence”. There was no right to be arrested and detained for questioning, the court said.

Finally, the court noted that the matter could have been resolved pre-trial by the defendant giving a statement to gardaí. Further, the trial judge could have directed the accused to deliver a written response to the endangerment charge prior to the trial beginning.


The court concluded that the accused had failed to show how his constitutional rights to a fair trial had been violated in the case. He was entitled to basis fairness in the investigation of the charges, but this was in service of ensuring he had a fair trial of the offences.

Summing up the position, the court stated:

“As a matter of principle, to accept the appellant’s argument, therefore, would be to elevate what should properly be seen as a reasonable and appropriate procedural step in the course of an interview on an indictable charge to be seen within the realm of basic fairness, to the status of a separate and free-standing Article 38-derived constitutional right, which, if not complied with, would have the effect of rendering a trial as unlawful.”

This was incorrect, for the reasons given in the decision.

Director of Public Prosecutions v. JD [2022] IESC 39

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