Case Law that strengthens Judge's Rules

detective

Does anyone know of any case law that relates to, or strengthens, the Judges rules? I know its out there but I cannot find it. I remember a colleague of mine losing a case that was based on the caution not being administered. Everything was right regarding the Judges rules but case law was stated by the defence barrister and the case was struck out.

johnnyskeleton

Treatment of persons in custody regulations 1987 are a more modern version. As with judges rules, a breach will not automatically result in evidence being excluded.

However, failure to caution is a much more serious breach. Lots of caselaw e.g. DPP v Shaw [1965ish, irish reports etc]. There's also a few sneaky points about different cautions. Basically, allowing a confession is a very exceptional exception to the hearsay rule and fair proceedures must be adhered to.

detective

No, I'm speaking about a specific case(s) that add to the judges rules when the Police have to caution a suspect. In my colleagues case the judges rules were adhered to perfectly but there was a very general piece of case law quoted which could apply to many situations. I think it went along the lines that a suspect must be cautioned if the Police questioning him think that his replies may incriminate him, even if the judges rules don't say they have to.

The case I was involved in was an alleged breach of Section 49 RTA. The Garda arrived at the scene of a crash after the fact. The investigating Garda asked a suspect at what time was he driving and did he drink between driving and the Garda arriving. There was no caution administered and the judges rules don't call for such but the defence barrister quoted case law and the case was struck out. anyone know of such case law I can't remember it : (

Reloc8

The Treatment of Person's in Custody Regs are utterly different to the Judges' Rules. Although the Judges' Rules can apply in respect of a person in custody, the Regs can only apply to a person in custody and have no application therefore to a roadside scenario, as is the example in this case. To describe the Regs as a modern version of the Rules is not accurate.

There's a whole heap of cases on the Judges' Rules and generally the principle is that they will be departed from reluctantly where breached. Even where there is no breach if basic fairness is perceived to have been impinged on evidence can be excluded.

As an example of the sort of situation described by detective : DPP v Breen (1995) WJSC-CCA 2054, eight years imprisonment imposed on firearms :-

CCA agrees that there was no breach of the Judges' Rules (Rule 2 in particular relates to caution when a decision to charge has been taken :

"It was argued that even if there was no intention there and then to charge the Applicant with a crime there was nevertheless such an intention if it were to transpire that something of an incriminating nature might be found in the course of the search. The Court held (and correctly held in the view of this Court) that such an intention would not give rise to a necessity to administer a caution. The wording of the Rule is quite specific and it does not apply to any conditional intention such as the intention which was argued to exist. The Court held that Garda Heverin had not made up his mind to charge the Applicant with any crime and that accordingly there had been no breach of the Rule.that such an intention would not give rise to a necessity to administer a caution. The wording of the Rule is quite specific and it does not apply to any conditional intention such as the intention which was argued to exist. The Court held that Garda Heverin had not made up his mind to charge the Applicant with any crime and that accordingly there had been no breach of the Rule."

However :-

"This Court holds that the failure to administer a caution in the circumstances of this case violated the requirements of basic fairness and that the evidence was wrongly admitted. Having regard to the fact that it was conceded (and properly conceded) that the evidence was an essential ingredient which led to the finding of guilt, the Court will order that the convictions be quashed without any order for a new trial."

The circumstances referred to :-

"In the present case, the Applicant was quite clearly troubled and afraid. He informed Detective Garda Heverin of this. His agitation was visible. The Court of trial was of opinion that the officer knew or ought to have appreciated that he was on the threshold of admitting some involvement in a crime relating to the use of his property for the purposes of a subversive organisation. In these circumstances he ought not to have been encouraged to make any admission without first being cautioned. Instead, however, Detective Garda Heverin said "Tell me, Sean"."

That's just by way of example. There is lots of reasonably similar situations in the caselaw - I think this one may well have been involved in the case described.

detective

Reloc8 that's the one exactly thanks a million. So basically the judgement is saying if a Garda ought reasonably know that a person is about to say something incriminating (maybe due to the particular questions being asked by the Garda) then in the principle of fairness the Garda must administer the caution. This is in effect adding another judges rule, sort of, right? Thanks again.

Reloc8

You're welcome.

I think what you have said there is pretty accurate. If it isn't another Judges' Rule as such, its a requirement of the courts imposed in certain circumstances.

There are equally plenty of other cases where an admission blurted out before caution, or volunteered before there was time to caution has been held admissible in evidence.

I think where there is a causal connection between the questions being asked and the incriminating answer without caution there is more likely to be a perceived unfairness.

e.g. 'how's it goin', while walking down the street and encountering a punter.

'not to bad garda, only I'm after killing somone'

No problem.

As opposed to the situation in Breen where the mind of the questioner was clearly fully addressed towards getting an admission, albeit that he could say honestly that he hadn't decided to charge when the question was put.

It is close to a miranda type requirement, in fact in some circumstances so close as to be identical.