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is a solicitor required at this stage?

  • 02-05-2013 9:31am
    #1
    .stranger
    Registered Users, Registered Users 2 Posts: 49 ✭


    there is a situation:

    Person X touched inappropriately person Y. After realizing what's done, person X apologized to person Y. Sometime later, person Y lodge a complain to DPP and investigation was kicked off. Person X gave a statement to Gardai and was assured by Gardai that no solicitor was required.

    Does the person X need to seek legal advice at this stage or this is a standard process of statement collection before a DPP decision?

    Thanks.


Comments

  • #2
    Ken.
    Closed Accounts Posts: 12,898 ✭✭✭✭Ken.


    My personal life opinion would be that as soon as a cop tells you you don't need a solicitor, ask for a phone to ring one.


  • #3
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    .stranger wrote: »
    there is a situation:

    Person X touched inappropriately person Y. After realizing what's done, person X apologized to person Y. Sometime later, person Y lodge a complain to DPP and investigation was kicked off. Person X gave a statement to Gardai and was assured by Gardai that no solicitor was required.

    Does the person X need to seek legal advice at this stage or this is a standard process of statement collection before a DPP decision?

    Thanks.

    After touching y the most stupid thing X did was to make a statment to AGS with out a solicitor. I will put the following in capitals for effect "AMSWER ALL QUESTIONS WITH NO COMMENT AND ALWAYS GET LEGAL ADVICE ON A CRIMINAL MATTER."


  • #4
    Slyderx1
    Registered Users, Registered Users 2 Posts: 153 ✭✭Slyderx1


    Did the Garda not caution you before you made the statement? At that point all alarm bells must have gone off......


  • #5
    .stranger
    Registered Users, Registered Users 2 Posts: 49 ✭.stranger


    Slyderx1 wrote: »
    Did the Garda not caution you before you made the statement? At that point all alarm bells must have gone off......

    Unfortunately, I was not present during the process. However, before giving the statement, Garda assured the person X that no solicitor is required - that I can confirm :)

    I have never had such or similar experience, hence no alarm bell went off at that time :) We do learn each time... Will start looking for a legal advice then. Thanks for all replies.


  • #6
    Slyderx1
    Registered Users, Registered Users 2 Posts: 153 ✭✭Slyderx1


    .stranger wrote: »
    Unfortunately, I was not present during the process. However, before giving the statement, Garda assured the person X that no solicitor is required - that I can confirm :)

    I have never had such or similar experience, hence no alarm bell went off at that time :) We do learn each time... Will start looking for a legal advice then. Thanks for all replies.
    Experience as in groping or giving a statement to An Garda? I reckon the stable door is well and truly closed. Best of Irish etc


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  • #7
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    .stranger wrote: »
    Unfortunately, I was not present during the process. However, before giving the statement, Garda assured the person X that no solicitor is required - that I can confirm :)

    I have never had such or similar experience, hence no alarm bell went off at that time :) We do learn each time... Will start looking for a legal advice then. Thanks for all replies.

    If that happened and can be proved (that means X will not just have to say it but prove to a judge that it happened) any statment should be excluded.


  • #8
    Slyderx1
    Registered Users, Registered Users 2 Posts: 153 ✭✭Slyderx1


    ResearchWill wrote: »
    If that happened and can be proved (that means X will not just have to say it but prove to a judge that it happened) any statment should be excluded.
    Why Will?


  • #9
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Slyderx1 wrote: »
    Why Will?

    A breach of your constitutional rights to silence and to receive legal advice. For some funny reason the Courts like to uphold the rule of law. One of those rules is to be legally advised or at least offered legal advice. If a member says a sure you don't need a lawyer (which would be very silly of them to do) then the detention after that point may be illegal and any evidence gathered from that point may be inadmissible.

    See The People-v-Murphy [1947] I.R. 236

    Held

    1. A statement made by an accused person, in answer to questions put by a police officer, is not inadmissible unless the questioning is of such a character, and carried to such an extent, that the statement ceases to be free and voluntary. The onus rests upon the prosecution to establish that a statement is voluntary.
    2. The mere giving of a caution, however formal in its terms, does not necessarily satisfy the requirements of the law that a statement must be a voluntary one. Where an improper inducement has been held out by a person in authority, the trial Judge must be satisfied that the inducement had ceased to operate on the mind of the accused, and that the statement was not made under the influence of that inducement.
    3. The expression "you are all right" meaning "you will be all right"constitutes an improper inducement.
    Accordingly, the appeal was allowed, the conviction set aside and a new trial ordered.

    If it was decided that the statement was voluntary, it would defo be a breach of the Judges Rules. The difference is if a breach of judges rules it may be excluded if illegally obtain it must be excluded.


  • #10
    Slyderx1
    Registered Users, Registered Users 2 Posts: 153 ✭✭Slyderx1


    The querist was not detained apparently but that is not clear admittedly . He made a voluntary statement . You don't actually need a solicitor to make a voluntary statement. It is not an inducement to say that. It would be an inducement to infer that he would not be prosecuted @you'l be alright' if he were to proffer one. The normal; situation is that the person is invited to call in to the Garda station to make the statement and is free to leave at anytime.
    And as you are probably aware , Will , the right to silence is slowly being eroded in recent legislation whereby statements can be read out in court without the witness actually being there in Court and I wonder if juries really like a litany of 'no comments' in a memo of interview when it is being read out to them....just a thought


  • #11
    Fred Swanson
    Closed Accounts Posts: 21,730 ✭✭✭✭Fred Swanson


    This post has been deleted.


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  • #12
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Slyderx1 wrote: »
    The querist was not detained apparently but that is not clear admittedly . He made a voluntary statement . You don't actually need a solicitor to make a voluntary statement. It is not an inducement to say that. It would be an inducement to infer that he would not be prosecuted @you'l be alright' if he were to proffer one. The normal; situation is that the person is invited to call in to the Garda station to make the statement and is free to leave at anytime.
    And as you are probably aware , Will , the right to silence is slowly being eroded in recent legislation whereby statements can be read out in court without the witness actually being there in Court and I wonder if juries really like a litany of 'no comments' in a memo of interview when it is being read out to them....just a thought

    I do agree with you, I am basing my opinion on the assumption of detention, and as Conroy said AGS only have to allow solicitor don't have to tell you. You are correct and I did not think of a person dropping down to AGS for a nice chat and give a statment. But it would all depend on exactly what happened.

    In relation to the inferences, these are a kinda hobby horse of mine. There are only 3 ways they can be invoked, the accused must be clearly told they are been invoked, the accused must be given reasonable oppertunity to consult with solicitor on the inferences. (Some lawyers don't really understand the inferences) I have had to deal with them a number if times, still not had a case where they went before a jury.

    But yes if a no comment statment went before a jury it would be damaging, but not half as bad as admissions, I would prefer to fight any case on the inferences rather than admissions.


  • #13
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Fred Swanson wrote: »
    This post has been deleted.

    Slyderx1is talking about Part 4 Criminal Justice Act 2007 which amended the Criminal Justice Act 1984.


  • #14
    Slyderx1
    Registered Users, Registered Users 2 Posts: 153 ✭✭Slyderx1


    Fred Swanson wrote: »
    This post has been deleted.
    The memo of interview and the supporting videotape form part of the prosecution case. The questions are more important admittedly than the 'no comment ' replies and would be read to the jury.


  • #15
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Slyderx1 wrote: »
    The memo of interview and the supporting videotape form part of the prosecution case. The questions are more important admittedly than the 'no comment ' replies and would be read to the jury.

    Unless part 4 of the 2007 act is invoked, then any interview which results in no comment, as far as the jury are concerned does not exist. If certain questions are answered only those questions and amswers can be put before the jury.


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