Convicted murderer fails in application to have detention declared unlawful

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The convicted murderer, who is serving a life sentence in Portlaoise prison, made an application in an informal letter to the High Court alleging that he is being unlawfully detained due to the delay in his solicitor’s arrival and the Garda questioning that occurred beforehand.

In 1998, Anthony Buck was convicted of murder and robbery following a three-week trial before the Central Criminal Court, where he was sentenced to imprisonment for life in respect of the murder conviction and twelve years imprisonment in respect of a robbery charge.

Delay in arrival of solicitor

Following his arrest at 3:15pm on a Sunday, Mr Buck was detained under section 4 of the Criminal Justice Act 1984 and questioned by Gardaí with some interruption until the arrival of his solicitor at 8:33pm.

During the course of these interviews he was questioned about the murder of David Nugent, denying any involvement in his death. At approximately 5:29pm one of the interviewing Gardaí informed another that Mr Buck wanted a solicitor and that he did not want to answer any questions until he had spoken to a solicitor.

A number of attempts were made to contact a solicitor unsuccessfully until the services of one was procured for Mr Buck at 8:33pm.

At 9:30pm Mr Buck indicated that he would make a statement, and having been cautioned a statement was committed to writing.

The solicitor who attended and had a consultation with Mr Buck gave evidence in the course of his trial; stating that in the course of the consultation, Mr Buck told the solicitor that he knew “all about making statements” and about his right not to make a statement, confirming that he had not yet made a statement and that he was familiar with Garda stations having had a number of previous convictions.

Previous Appeals

In 1999, Mr Buck failed to appeal his conviction in the Court of Criminal Appeal, however a point of law of exceptional public importance was certified for the consideration of the Supreme Court pursuant to section 29 of the Courts of Justice Act 1924.

The question considered by the Supreme Court in The People (DPP) –v- Buck 2 IR 268 was whether the Gardaí, in questioning an arrested person before he has access to a solicitor but after he has sought access, constitutes a conscious and deliberate violation of the arrested persons constitutional right of access to a solicitor, rendering inadmissible in evidence any statement, omissions or confessions which may thereafter be made by the arrested persons, whether or not any such statements are made after the arrival of a solicitor.

Considering The People (DPP) v Healy 2 IR 73, where there was a causative link between the breach of the right of access to a solicitor by the Gardaí and the obtaining of an admission, Chief Justice Keane in the Supreme Court found that in Mr Buck’s case there was no such causative link as there had been no conscious and deliberate violation of his right of access to a solicitor; he was at no time in unlawful custody; and the inculpatory statements made by him were properly not treated as inadmissible.

The Supreme Court set the standard going forward to be that Gardaí could interrogate a suspect before the solicitor’s arrival as long as they were making bona fide attempts to provide a solicitor.

Retrospective benefit

Twelve years after Mr Buck’s appeal was unanimously dismissed, the Supreme Court decision in The People (DPP) –v- Gormley and White IESC 17 held that a detainee had a right of access to a solicitor before interview and not to be interrogated prior to gaining such access.

As a result of this decision, Mr Buck claims to be entitled to the retrospective benefit of that decision and that his pre-trial detention and trial were conducted in breach of the standard of fairness required under Article 38 of the Constitution as a result of which he is entitled to release under Article 40

Justice McDermott stated that Mr Buck’s application to the High Court was a collateral attack on the lawfulness of his conviction, which he contended before the Court of Appeal in 2015. Mr Buck argued that there had been a miscarriage of justice and that his conviction should be quashed by reason of the decision of the Supreme Court in Gormley and White.

Notwithstanding, Justice McDermott agreed with the decision of the Court of Appeal where it was found that the facts in Mr Buck’s case were entirely distinguishable from the facts in Gormley; no admissions were made during the time that the Gardaí were seeking to secure the attendance of a solicitor, and all admissions were made after there had been a consultation with a solicitor - therefore any purported unconstitutionality did not give rise to the statement made which was adduced in evidence at his trial, there was no causative link, and therefore no fundamental unfairness in the trial.

Additionally, Mr Buck was not entitled to retrospective application of those principles, as the retrospective effect of a judicial decision is excluded from cases already finally determined at common law, and final decisions in judicial proceedings should not be set aside by reason solely of a subsequent decision declaring the Act constitutionally invalid (A v Governor of Arbour Hill Prison 4 IR 88).

To allow retrospective effect of decisions finally determined in common law would render a legal system uncertain, incoherent and dysfunctional

Refusing the application, Justice McDermott declared that he was not satisfied that Mr Buck established an arguable case that his trial was in any way unfair. Furthermore, there was no basis for a complaint based on the provisions of the European Convention on Human Rights or the European Convention on Human Rights Act 2003.