Supreme Court: Use of polygraph in wardship context not oppressive

About this case:

• Citation:
  [2023] IESC 23
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Peter Charleton

Delivering judgment for the Supreme Court, Mr Justice Peter Charleton determined that “judges are not at large. Instead, there must be a focus on what is alleged to be wrong with an interview and why that of itself renders the resulting confession dangerous.”

Background

The respondent was the mother of three children, of whom two were adults with special needs, who were subjected to child sexual abuse and neglect. In March 2015, following a notification from an international agency, gardaí investigated what appeared to be a serious case of child pornography sharing over the Internet.

Upon searching the family home of the respondent and her husband, a camera was found with footage showing criminal actions against the children. The respondent denied her involvement and a decision was made not to prosecute her, but her husband and another man were convicted and imprisoned.

An examination in aid of wardship was undertaken by a psychologist, Dr O, to inquire into the respondent’s capacity to care for the children. The examination consisted of five interviews conducted with polygraph equipment within which a number of alleged confessions to participation in the abuse and neglect were alleged to have been recorded.

Once the admissions were allegedly made during the interviews, the applicant reversed its earlier decision and charged the respondent.

Court proceedings

On 14 July 2021, the trial judge, in the absence of the jury, analysed the facts around the recording of the alleged admissions and decided that fairness required them to be ruled as inadmissible in evidence. The jury was instructed to enter a verdict of not guilty by direction. The applicant appealed the acquittal to the Court of Appeal under s. 23 of the Criminal Procedure Act 2010.

On 14 October 2022, the Court of Appeal reversed the decision of the trial judge and ordered a retrial, ruling that there was no basis for excluding the alleged admissions. An application for leave to appeal to the Supreme Court was made by the respondent, with leave being granted.

The Supreme Court

Mr Justice Charleton considered the duty of disclosure in respect of the abuse of children and vulnerable persons, finding it established “that even within a psychotherapeutic setting, meaning an intervention which is for the benefit of the client and his or her mental well-being, there is no privilege whereby anything disclosed may not later be used in court”, citing O’R v Director of Public Prosecutions [2011] IEHC 368 [17].

Finding that what was involved in the case before the court was at a further remove from a psychotherapeutic setting, Mr Justice Charleton found that “the legislation applies to that setting whereby the 2012 Act required that Dr O disclose to the gardaí ‘information’ which he ‘knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of’ the person making the disclosure.”

Noting that the correct test for lifting the in camera rule was contained in Eastern Health Board v The Fitness to Practise Committee of the Medical Council [1998] 3 IR 399, the court agreed that the conclusion that disclosure of the psychological reports was in the interests of justice and of the vulnerable persons was “irresistible”, acknowledging that there was no absolute obligation on the Health Service Executive to furnish the reports to the gardaí and the Child and Family Agency.

Mr Justice Charleton then considered the protections against oppression of those in custody, highlighting that “these protections arise from the circumstances of the arrest of a suspect: a person nonetheless and up to conviction presumed to be innocent is subject to deprivation of liberty”.

Reviewing the caselaw concerning the procurement of confessions in custody, the court noted that whilst “a confession is among the most powerful categories of evidence”, “the considerations which apply to confessions made while in custody do not readily extend into social situations… the primary reality is that self-protection and autonomy are present in as full measure as the nature of the person making an admission allows”.

Considering that “a person’s will can be overborne in any situation”, the court highlighted that the respondent “was free to leave an interview with Dr O at any time or to consider, perhaps in consultation with those advising her, to leave an interval of time elapse before attempting to remake the bonds with her children that had been so cruelly broken”.

Analysing the use of the polygraph machine, Mr Justice Charleton determined that this was not a case where a party sought to admit evidence of the “reactions of a person to questions whereby a contrast is sought to drawn as to how they reacted on a corporal level when faced with neutral, challenging or comfortable questions”, stating that in this jurisdiction, the assessment of a witness is one of ordinary “day to day consideration”.

Reflecting upon the respondent’s challenge concerning the use of the polygraph, the court clarified that “the point here is of making a report to the judge with responsibility for wardship matters and not the production of evidence that removes the responsibility of a jury, or judge if trier of fact, of assessing evidence”.

Considering that deception can vitiate the fairness of confessions, Mr Justice Charleton determined that “Innocent misstatements are not in such a category. Interviewers cannot be held to a standard of perfection. This is a matter for individual assessment.”

Finding that the DPP was entitled to review its decision not to prosecute even in the absence of new evidence, the court determined that “the original decision not to prosecute BK was made in good faith… new evidence has emerged. From the point of view of prosecuting or not, that evidence can only be judged as to its potential assistance to a prosecution. Any assessment as to the weight of evidence will only be possible at trial.”

Concluding that whilst the wardship process does not have the structural protections around interviewing suspects which arise from jurisprudence or statute, the Court confirmed that this “cannot be used as a basis for the invention of would be an entire series of novel rules of law” but that “maintaining a context wherein underhand and perilous contamination of a person’s mind are eschewed remains a principle upon which judicial decision may be legitimately based”.

Conclusion

Affirming the decision of the Court of Appeal, and inviting submissions as to whether the court should order a retrial of the respondent, the Supreme Court concluded that there was no basis for excluding any of what the respondent said during her interviews, and “there is nothing to suggest that the polygraph test was used as an instrument of oppression… nor was there any aspect of this series of interviews which in any way could be said to be equivalent to the circumstance of arrest”.

The People (at the suit of the Director of Public Prosecutions) v. BK [2023] IESC 23