CASE OF QUINN v. IRELAND
Violation of Art. 6-1;Violation of Art. 6-2;No separate issue under Art. 10;Costs and expenses partial award - domestic proceedings;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Georg Ress
8. On 7 June 1996, at approximately 6.00 a.m., two detective police officers left Limerick city in an unmarked police car escorting a post office van carrying significant sums of money on its way to Adare village, Co. Limerick. When the two vehicles arrived at the post office in Adare, the police car was rammed from behind by a stolen vehicle and immediately surrounded by five heavily armed and masked individuals dressed in paramilitary style uniforms. One of the five opened fire at point blank range on the police officers. One of those officers died instantly and the other was seriously wounded. 9. The police suspected a local unit of the Irish Republican Army (an unlawful paramilitary organisation known as the IRA) and the IRA later claimed responsibility for the murder. It was also suspected by the police that, on the night prior to the attack in Adare, the stolen vehicle together with all firearms and ammunition used in the attempted robbery had been stored in a safe house in Patrickswell, Co. Limerick. As part of the investigation that followed, a number of persons suspected of being members of the local unit of the IRA were arrested and charged, including the applicant’s brother who was charged with conspiracy to commit robbery (in relation to the Adare incident), possession of ammunition and of membership of the IRA. A total of 63 persons were arrested and asked to account for their movements at particular times surrounding the attack, including the remaining members of the applicant’s family except his two sisters. All of those persons who were asked to account for their movements did so. 10. On 19 July 1996 at 9.30 a.m. the applicant, who resided in the family home in Patrickswell, Co. Limerick, was arrested under section 30 of the Offences Against the State Act 1939 ("the 1939 Act") on suspicion of being a member of the IRA contrary to section 21 of the 1939 Act. 11. He was questioned on eight occasions during two 24-hour consecutive periods of detention for which provision is made under section 30 of the 1939 Act. While in detention, he saw his solicitor on three occasions: between 11.12 a.m. and 11.36 a.m. on 19 July 1996 prior to his first interview with the police; between 5.54 p.m. and 6.27 p.m. on 19 July 1996 and between 1.28 p.m. and 2.00 p.m. on 20 July 1996. That solicitor did not attend the applicant’s interviews with the police. 12. At the beginning of the interviews, the applicant was cautioned that he was not obliged to say anything, but that anything he did say would be taken down in writing and could be given in evidence. Many of the questions put to the applicant related to the attack in Adare and to his alleged membership of the IRA. On several occasions during those interviews he was also requested to account for his movements during certain periods of time on 6 and 7 June 1996 immediately before, during and after the incident in Adare. In being so requested, he was informed by the questioning police officers that a failure to provide this information would constitute an offence under section 52 of the 1939 Act for which the potential penalty was six months’ imprisonment. The applicant was also informed, on certain occasions only, that the initial caution given to him did not apply as he was obliged to respond under section 52 of the 1939 Act. 13. The applicant denied any connection with the events in Adare, indicated that he was in London when he heard the news of the murder and otherwise refused to give an account of his movements stating, on one occasion, that he had been advised by his solicitor not to answer questions. 14. On 17 January 1997 he was charged, pursuant to section 52 of the 1939 Act, on three counts of refusing to give an account of his movements. On 15 May 1997 the District Court dismissed one charge, he was convicted on the second charge (a section 52 request made on 21 July 1996) and no ruling was made on the remaining charge. The applicant was sentenced to six months’ imprisonment. 15. The applicant appealed against conviction and sentence to the Circuit Court and was released on bail pending the appeal. He appealed on the basis, inter alia, of an overlap in the times referred to in the charge which was dismissed and the charge on which he was convicted. In early October 1997 the Circuit Court rejected this part of his appeal. When the Circuit Court sat on 20 January 1998 to hear the applicant’s submissions on sentence, he withdrew that portion of the appeal which was then struck out. The applicant was detained immediately to serve his prison sentence and was released on 4 June 1998. 16. In February 1999 the applicant’s brother pleaded guilty to the charge of conspiracy to commit robbery and the remaining charges were not proceeded with. Four other men pleaded guilty to the manslaughter of the detective police officer and the wounding of his colleague in Adare, Co. Limerick. 17. Article 38(1) of the Irish Constitution provides that no person shall be tried on any criminal charge save in due course of law. By Article 40, the State guarantees liberty for the exercise, subject to public order and morality, of the right of citizens to express freely their convictions and opinions. 18. The Offences Against the State Act 1939 (“the 1939 Act”) is described in its long (explanatory) title as an Act to make provision for actions and conduct calculated to undermine public order and the authority of the State and, for that purpose, to provide for the punishment of persons guilty of offences against the State, and to establish Special Criminal Courts. 19. Section 21 of the 1939 Act makes it an offence to be a member of an unlawful organisation as defined in the Act. 20. Section 30 deals with the arrest and detention of suspected persons and provides that a member of the police can arrest and detain a person whom he suspects of having committed an offence under the 1939 Act or an offence scheduled under Part V of the 1939 Act (the scheduled offences are mainly offences under the firearms and explosive substances’ legislation). This power of arrest is a permanent power so that it is not dependent on a section 35 proclamation (see the following paragraph). 21. Section 35 of the 1939 Act provides that Part V of that Act (which establishes the Special Criminal Courts and contains section 52) is to come into force by means of a proclamation by the Government made when the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, and when the Government therefore makes and publishes a proclamation to that effect. The proclamation was made in 1972 and is still in force. Accordingly, section 52 of the 1939 Act has been in force since 1972 to date. 22. By section 36 of the 1939 Act the Government may declare that a particular class or kind of offence is a scheduled offence for the purpose of the 1939 Act and such offences are to be tried by the Special Criminal Courts established under section 38 of the 1939 Act. 23. Section 52 of the 1939 Act reads as follows: “1. Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the <police> may demand of such person, at any time while he is so detained, a full account of such person’s movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduled offence. 2. If any person, of whom any such account or information as is mentioned in the foregoing sub-section of this section is demanded under that sub-section by a member of the <police>, fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.” 24. Under the terms of the Good Friday Peace Agreement of 10 April 1998, the Government committed to initiating a wide ranging review of, inter alia, the 1939 Act with a view to reform and dispensing with those elements of the 1939 Act which would no longer be required. The Minister for Justice, Equality and Law reform has, with Government approval, established a committee to examine all aspects of the Offences Against the State Acts and to report to the Minister with recommendations for reform. The Committee has commenced its work. 25. In the case of the People (Director of Public Prosecutions) v. McGowan (1979 IR 45) the accused had been arrested under section 30 of the 1939 Act and had made certain statements to the police. The defence argued that because of the basis of his arrest (section 30), the existence of section 52 of the 1939 Act and even though no section 52 requests had actually been made, the accused was bound under penalty to give an account of his movements. Accordingly, the statements which had been made by him were involuntary and not therefore admissible. The Court did not find this argument persuasive since no section 52 requests had in fact been made. It went to point out that, even if section 52 had been invoked by the police, the defence submission was not well-founded because of previous Irish case-law which had held that statements obtained in accordance with Irish law, even a law which made it a criminal offence to refuse to answer, were not inadmissible in any legal proceedings. 26. The Garda Siochana (police) Handbook contains relevant legislation and commentaries and is published by the Incorporated Law Society of Ireland in association with the Garda Siochana. The commentary on section 52 of the 1939 Act in the sixth edition (1991) provides as follows: “The fact that the accused is bound under threat of penalty to answer questions lawfully put under section 52 does not render the resultant answers or statements inadmissible in evidence” The judicial authority for that proposition was noted in the handbook as being found in the above-cited McGowan case and the earlier Irish case-law approved in the McGowan case. 27. In the case of Anthony Heaney and William McGuinness v. Ireland and the Attorney General ([1994] 2 ILRM), two individuals had been sentenced to six months’ imprisonment pursuant to section 52 of the 1939 Act for failing to give an account of their movements. The High Court rejected their challenge to the constitutionality of section 52, considering that section 52 constituted a proportionate interference with those persons’ right to silence guaranteed by Article 38 of the Constitution: the objective was to assist police investigations into serious crimes of a subversive nature involving the security of the State; the restrictions were not considered arbitrary or irrational; and other legal protections were available to persons in custody under section 30 of the 1939 Act which minimised the risk of an accused wrongfully confessing to a crime and safeguarded against the possible abuse of the powers provided by section 52 of the 1939 Act. Those protections were listed by the High Court: the requirement that a police officer must have a bona fide suspicion prior to arrest; the obligatory informing of the suspect of the offences under the 1939 Act and/or of the scheduled offences of which he is suspected; the right to legal assistance when reasonably requested; the right to medical assistance; the right of access to court; the right to remain silent and to be told of that right; the obligations to provide appropriate cautions to detainees and to abstain from cross-examining a person in detention under section 30 of the 1939 Act and from unfair and oppressive questioning of such detainees; and the conditions attaching to any extension of the length of detention under section 30 of the 1939 Act. The Supreme Court rejected the appeal (Anthony Heaney and William McGuinness v. Ireland and the Attorney General [1996] IR 580). It noted that section 52 of the 1939 Act was silent on the question of the later use of statements made pursuant to requests of the police under that section. While it noted that the Court of Criminal Appeal had suggested in the above-cited McGowan case that information lawfully obtained under Section 52 might be later used in evidence, the Supreme Court expressly reserved its position as to whether that view was correct or not. The Supreme Court pointed out that the right to silence was a corollary to the freedom of expression guaranteed by Article 40 of the Constitution. The relevant assessment was, therefore, to consider the proportionality of the restriction on the right to silence in view of the public order exception to Article 40 of the Constitution. It noted that the 1939 Act was aimed at actions and conduct calculated to undermine public order and the authority of the State and that the proclamation made under section 35 of the 1939 Act remained in force. As to whether section 52 restricted the right to silence more than was necessary in light of the disorder against which the State was attempting to protect the public, the court noted that an innocent person had nothing to fear from giving an account of his or her movements even though such a person may wish, nevertheless, to take a stand on grounds of principle and to assert his or her constitutional rights. However, it considered that the entitlement of citizens to take such a stand must yield to the right of the State to protect itself. The entitlement of those, with something relevant to disclose concerning the commission of a crime, to remain silent must be regarded as of an even lesser order. 28. In the case of National Irish Bank Ltd (In the matter of National Irish Bank Ltd and the Companies Act 1990, 1999 1 ILRM 321, at 343) the Supreme Court found that a confession of a bank official obtained by Inspectors as a result of the exercise by them of their powers under Section 10 of the Companies Act 1990 would not, in general, be admissible at a subsequent criminal trial of that official unless, in any particular case, the trial judge was satisfied that the confession was voluntary. The Supreme Court considered that compelling a person to confess and then convicting that person on the basis of the compelled confession would be contrary to Article 38 of the Constitution. That court also found that any other evidence obtained as a result of information provided under section 52 of the 1939 Act would be admitted in evidence in a subsequent trial if the trial judge considered, in all the circumstances, that it would be just and fair to admit it.