Académique Documents
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1 I.R.
The People (at the Suit of the Director of Public Prosecutions) v. John Shaw
[S.C. No. 129 of 1979]
Court of Criminal 22nd May 1979
Appeal 17th December 1980
Criminal law - Evidence - Admissibility - Illegality - Delay in bringing suspect before a court -Whether statement of suspect
made while being detained unlawfully - Police concerned with rescueof victim - Conflicting rights under the
Constitution - Special circumstances - Courts of JusticeAct, 1924 (No. 10), s. 29 - Constitution of Ireland, 1937,
Article 40.
At 11.30 p.m. on Sunday the 26th September, 1976, the accused and another man were arrested by the police, without a
warrant, in Galway city. They were informed that they had been arrested for being in possession of a stolen motor car. The
police suspected that the two men were involved in the disappearance of two young women; one of them, E., had disappeared
in Wicklow a month earlier and the other, M., had disappeared in Mayo four days earlier. The police, being concerned for the
safety of the two women, did not bring the accused before a District Court at the first reasonable opportunity, which occurred at
10.30 a.m. on Monday, the 27th September, but continued to question the accused and the other man on the Monday and to
question the accused on Tuesday, the 28th September. On the Monday evening the other man made a statement incriminating
the accused in the murder of E. On the morning of Tuesday, the 28th September, the accused signed a written statement in
which he admitted (inter alia) that he had killed M. and, in the afternoon of that day the accused, at his own suggestion, went on
a journey in a police car to various places in Connemara, to which he directed the car, and pointed out to the police the places
where M. had been killed and where her clothes had been burned or hidden. On Wednesday, the 29th September, the accused
was brought before the District Court in Wicklow and there charged with having murdered, raped and falsely imprisoned M.
The accused was convicted of those offences after a trial in the Central Criminal Court before a judge and jury, and he was duly
sentenced.
At the trial of the accused, the trial judge admitted in evidence the accused's written statement and testimony proving the
admissions made by him during the Connemara journey. The trial judge did so, being satisfied that the statement and the
admissions had been made by the accused voluntarily, on the basis that, because of the reasonable and genuine concern of the
police for the safety of M., the continued detention of the accused by them after 10.30 a.m. on Monday, the 27th September
(without bringing him before a court) did not amount to a conscious and deliberate violation of the accused's constitutional
rights within the meaning of the principle suggested in The People (Attorney General) v. O'Brien [1965] I.R. 142 and that,
even if it did, such evidence was still admissible as there were extraordinary excusatory circumstances within the meaning of
the exception embodied in that principle. The accused applied to the Court of Criminal Appeal for leave to appeal against his
convictions.
Held by the Court of Criminal Appeal (O'Higgins C.J., Finlay P. and McMahon J.), in dismissing the application, 1, that
the findings of the trial judge that the statement and the admissions of the accused had been made by him voluntarily and that
he had not been denied access to a solicitor were supported by the evidence.
2. That the proper inference from the facts found by the trial judge was that there had not been any violation of the
accused's constitutional right to be brought before a court and charged or to be released from custody at the first reasonable
opportunity.
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3. That, in the special circumstances, the police, in continuing to detain the accused in custody without bringing him
before a court at the first reasonable opportunity, had not acted unlawfully but had been justified in so doing by the necessity to
endeavour to protect M'sconstitutional right to life.
Dunne v. Clinton [1930] I.R. 366 distinguished.
4. That, assuming that the continued detention of the accused after 10.30 a.m. on the 27th September, 1976, had been
caused by a conscious and deliberate violation of his constitutional rights, the trial judge had acted correctly in allowing
evidence to be given of the accused's statements and admissions since there had been extraordinary excusatory circumstances
within the meaning of the exception embodied in the principle suggested in The People (Attorney General) v. O'Brien [1965]
I.R. 142 .
5. That the accused's arrest and detention had become lawful shortly after midnight on the 26th September, 1976, when he
was first informed of the reason for his arrest.
Nevertheless, the Court of Criminal Appeal granted a certificate pursuant to s. 29 of the Courts of Justice Act, 1924,
stating that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest
that an appeal should be taken to the Supreme Court. The point of law so certified was whether the continued detention of the
accused was lawful and, if so, whether the statements made by him had been properly admitted in evidence. At the hearing of
an appeal by the accused, pursuant to the said certificate, it was
Held by the Supreme Court (Walsh, Henchy, Griffin, Kenny and Parke JJ.), in disallowing the appeal, 1, that the detention
of the appellant by the police became lawful when, shortly after it had occurred, he was informed of the reason for his arrest.
2. (Walsh J. dissenting) That, in the special circumstances, the detention of the appellant in custody after 10.30 a.m. on
the 27th September, 1976, without bringing him before a court, was not unlawful.
3. (Per Henchy, Griffin, Kenny and Parke JJ.) That, in deliberately choosing to endeavour to save the life of M. at the cost
of ignoring for the time being the normal rules governing the appellant's right to liberty, the police had endeavoured to protect
the more important of two conflicting rights under the Constitution and, accordingly, they had not acted unlawfully in
continuing to detain the appellant in custody without bringing him before a court at the first reasonable opportunity.
4. That the statements and admissions made by the appellant in the morning and afternoon of the 28th September, 1976,
having been made voluntarily, had been properly admitted in evidence at the trial of the appellant.
The People (Attorney General) v. O'Brien [1965] I.R. 142 considered.
5. (Per Walsh, Henchy, Griffin and Parke JJ.) That, in hearing an appeal authorised by a certificate granted under s. 29 of
the Act of 1924, the Court had jurisdiction to determine issues other than those arising from the point of law specified in the
certificate.
The People (Attorney General) v. Giles [1974] I.R. 422 considered.
Cases mentioned in this report:—
1 Dunne v. Clinton [1930] I.R. 366.
2 R. v. Lemsatef [1977] 1 W.L.R. 812.
2 In re Ó Laighléis [1960] I.R. 93.
4 The Attorney General v. Burke [1955] I.R. 30.
5 The State (Hoey) v. Garvey [1978] I.R. 1.
6 Doherty v. Liddane [1940] Ir. Jur. Rep. 58.
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Criminal Appeal.
In The People (Attorney General) v. O'Brien 11 five members of the Supreme Court decided that evidence of
stolen goods having been found in a
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defendant's house was admissible at his trial, on a charge of stealing the goods, despite the fact that the goods had
been so discovered as the result of an unlawful police search that had been conducted on the presumed authority of
a search warrant which authorised another house to be searched. All the judges held that the illegality was
unintentional and accidental and that, accordingly, it was not a ground for excluding that evidence. In so deciding,
two of the judges expressed the view that evidence obtained as a result of a deliberate and conscious violation of the
constitutional rights of an accused should be inadmissible at his trial, save where there were extraordinary
excusatory circumstances. The other three judges, while expressing agreement with that view, preferred not to
anticipate events and held that the admission or rejection of evidence obtained by unlawful means was a matter for
the discretion of the trial judge.
In O'Brien's Case 11 the courts were concerned with the question of the admission of evidence which had
been obtained by means which, although unlawful, were not connected with the lawfulness of the defendant's
detention in custody. In the trial which is the subject of this report, the answer to the question of unlawful means
depended mainly on whether the accused, John Shaw, had been detained in unlawful custody after 10.30 a.m. on
Monday, the 27th September, 1976.
Article 40, s. 3, of the Constitution of Ireland, 1937, provides:—
"1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the
personal rights of the citizen.
2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice
done, vindicate the life, person, good name, and property rights of every citizen."
Article 40, s. 4, sub-ss. 1 and 2, of the Constitution provides:—
"1 No citizen shall be deprived of his personal liberty save in accordance with law.
2 Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging
that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such
complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody
such person is detained to produce the body of such person before the High Court on a named day and to
certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being
produced before that Court and after giving the person
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in whose custody he is detained an opportunity of justifying the detention, order the release of such
person from such detention unless satisfied that he is being detained in accordance with the law."
Section 15, sub-ss. 1 and 2, of the Criminal Justice Act, 1951, provides:—
"(1) A person charged with an offence shall on arrest be brought before a Justice of the District Court having
jurisdiction to deal with it, if a Justice is immediately available.
(2) If not, he shall be brought as soon as may be before a Peace Commissioner in the district of such a Justice."
The duty to bring an arrested person before the District Court was considered in The People v. Walsh .10
On the 23rd-27th, 30th and 31st January, and the 1st-3rd and 6-9th February, 1978, the accused, John Shaw,
was tried in the Central Criminal Court before Costello J. and a jury on an indictment which charged him with the
murder, rape and unlawful imprisonment of Mary ____.
During the trial of the accused counsel on his behalf objected to the admission of certain evidence including
(a) statements made by the accused in the Galway police station early on the morning of Tuesday, the 28th
September, 1976, and (b) admissions and acts of the accused which occurred while he was in custody on a journey
through Connemara on the afternoon of the same day. On the 3rd February, 1978, the trial judge gave his rulings on
the admissibility of the disputed evidence in a written judgment which commenced with an examination of the
principles of law relating to the legality of the initial detention of the accused. On that topic the trial judge referred
to the unreported judgments of the Supreme Court delivered on the 12th February, 1931, in Dunne v. Clinton and
to the report1 of the judgments of the High Court delivered in that case. He also referred to R. v. Lemsatef 2 ; In re
Ó Laighléis 3 ; The Attorney General v. Burke 4 ; The State (Hoey) v. Garvey 5 ; Doherty v. Liddane 6 ; John
Lewis & Co. v. Tims 7 and Dallison v. Caffery .8 In this connection see also the subsequent decisions in The
People v. O'Loughlin 9 and The People v. Walsh .10
Having referred to those cases, the judgment of the trial judge continued as follows:—
6. I consider that on these authorities I should apply the following
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principles. It was the duty of the Gardaà either to release the accused or to bring him with reasonable promptitude
before a peace commissioner or a District Justice for the purpose of charging him. Whether the Gardaà acted with
reasonable promptitude would depend on all the circumstances of the case. However, the Gardaà are not entitled to
delay in bringing the accused before a peace commissioner or a District Justice merely for the purpose of
formulating a good case against the suspect.
Evidence and illegal acts
In the light of the different views which have been expressed on the principles of law which are applicable in
the case before me, I think it is desirable for me to examine in some detail the authorities on the subject and to
extract from them the principles which this Court should follow.
First, I think it is important to examine the decision in The People (Attorney General) v. O'Brien .11 The
decision of the majority of the Supreme Court was delivered by Kingsmill Moore J. The case concerned the
admission of evidence which had been obtained as a result of an illegal search; the search warrant had identified
incorrectly the house to be searched. The majority decision was mainly based on a consideration of the relevant
principles to be applied, apart from the provisions of the Constitution. Kingsmill Moore J. pointed out that there
were three possible answers to the problem which the court had to consider. At p. 159 of the report he said:—
"First, that if evidence is relevant it cannot be excluded on the ground that it was obtained as a result of illegal
action: second, that if it was obtained as a result of illegal action it is never admissible: third, that where it was
obtained by illegal action it is a matter for the trial judge to decide, in his discretion, whether to admit it or not,
subject, in cases where the evidence has been admitted, to review by an appellate Court." Having rejected the first
two answers, he continued at p. 160:— "It appears to me that in every case a determination has to be made by the
trial judge as to whether the public interest is best served by the admission or by the exclusion of evidence of facts
ascertained as a result of, and by means of, illegal actions, and that the answer to the question depends on a
consideration of all the circumstances." I draw attention to the fact that the court's judgment was expressly dealing
with admission of evidence of facts "ascertained as a result of, and by means of, illegal actions."
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Mr. Justice Walsh, who delivered the minority judgment, did not agree with the conclusions of the majority
that a trial judge had a discretion to disallow evidence in the manner suggested by Kingsmill Moore J. Mr. Justice
Walsh's judgment was divided into two parts. In the second part he considered "the admissibility of evidence
obtained as a result of an illegal seizure and which illegality amounts to a breach of a constitutional right of the
accused persons" (see p. 164) and he concluded (at p. 170) that ". . . evidence obtained in deliberate conscious
breach of the constitutional rights of an accused person should, save in the excusable circumstances outlined above,
be absolutely inadmissible. It follows therefore that evidence obtained without a deliberate and conscious violation
of the accused's constitutional rights is not excludable by reason only of the violation of his constitutional right."
The agreement of the majority of the Supreme Court with the views expressed by Mr. Justice Walsh was given in
the following way at p. 162 of the report:— "Mr. Justice Walsh, in the judgment which he is about to deliver, is of
opinion that where evidence has been obtained by the State or its agents as a result of a deliberate and conscious
violation of the constitutional (as opposed to the common law) rights of an accused person it should be excluded
save where there are 'extraordinary excusing circumstances' and mentions as such circumstances the need to prevent
an imminent destruction of vital evidence or rescue of a person in peril, and the seizure of evidence obtained in the
course of and incidental to a lawful arrest even though the premises on which the arrest is made have been entered
without a search warrant. I agree that where there has been such a deliberate and conscious violation of
constitutional rights by the State or its agents evidence obtained by such violation should in general be excluded,
and I agree that there may be certain 'extraordinary excusing circumstances' which may warrant its admission. I
would prefer, however, not to attempt to enumerate such circumstances by anticipation."
It will be noted that this part of the judgment refers to evidence obtained by a violation of constitutional rights
whilst the earlier part of the judgment deals with evidence of facts ascertained "as a result of, and by means of,
illegal actions." I do not consider that it was intended to suggest that there is a difference in the principles of law to
be applied in the two situations and, accordingly, I consider that before the principles which are established by that
case on the exclusion of evidence can be applied the court must be satisfied that the impugned evidence was
obtained "as a result of, and by means of, illegal actions." O'Brien's Case 11 was a case in which the impugned
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evidence was obtained by means of an illegal search and, quite clearly, it had been obtained as a result of, and by
means of, an illegal act. Further examples of how such evidence can arise are to be found in the cases cited by
Kingsmill Moore J. Jones v. Owens 12 was a case of an illegal search of the person of the accused, as was
Kuruma v. The Queen .13 Adair v. M'Garry 14 was a case in which the question of finger-print evidence taken by
illegal means was considered. H.M. Advocate v. M'Guigan 15 related to evidence obtained by a search which was
alleged to have been illegal (as did Lawrie v. Muir 16 ) and M'Govern v. H.M. Advocate 17 related to evidence of
scrapings taken illegally from the finger nails of a suspect. The American cases which were cited dealt with
evidence obtained as a result of an illegal search ( Weeks v. United States 18 ), evidence obtained by means of a
microphone illegally inserted in a party wall ( Silverman v. U.S. 19 ) and evidence obtained without a search
warrant: Fahy v. Connecticut .20 These are all cases in which the evidence was quite clearly obtained by means of,
and as a result of, the illegal act—although different views of the legal principles applicable were expressed in the
different judgments.
In The People v. Madden 21 the Court of Criminal Appeal applied the principles of O'Brien's Case 11 to
circumstances in which the illegal act amounted to the wrongful deprivation of the accused's liberty, in that the
accused was held in detention for a period longer than that permitted by law. The judgment of the court adverted to
the principle to which I have referred and found that the illegal act was the means by which the impugned statement
was obtained and that the statement was the result of the illegal act. Neither O'Brien's Case 11 nor Madden's Case
21 is authority for the sweeping proposition that every statement made by an accused at the time when he is in a
custody which is illegal must be rejected, and that any evidence which can be connected with the accused when in
such custody must be rejected. In some cases the Courts may have to consider the application of the strict
exclusionary rule: in others, the discretionary rule will apply. If the evidence sought to be admitted was not
obtained both by means of, and as a result of, the illegal act, then the evidence is admissible, unless it is excluded
by some other rule of law.
It is possible to envisage circumstances in which the illegal act of detention is not the means by which the
impugned statement was obtained. One example will suffice. A suspect who has been arrested illegally may hear
news whilst in custody (for example, the death of a victim of assault) which
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news causes him such remorse that he decides to confess. The resulting confession would not have been induced
by the wrongful custody but by other causes, and the evidence would not have been obtained by means of the illegal
act.
Secondly, if evidence is obtained as a result of, and by means of, illegal actions, it becomes necessary to
consider whether the illegal acts amount to a violation of the accused's constitutional rights. If the acts are merely
illegal (under the common law or by statute) then the discretionary rule, as formulated by Kingsmill Moore J.
applies: see O'Brien's Case 11 at pp. 160-161. This means that the court is required to determine whether the
public interest is best served by admitting or by excluding the evidence. If, however, the illegal act as a result of,
and by means of, which the evidence was obtained amounted to a "deliberate and conscious" violation of the
accused's constitutional rights, then a stricter exclusionary rule applies. In such circumstances 1 the evidence must
be excluded, unless there are"extraordinary excusing circumstances" which warrant its admission: see The People
(Attorney General) v. Cummins 22 at p. 325 of the report. The majority judgment in O'Brien's Case 11 deliberately
refrained from indicating what might constitute "extraordinary excusing circumstances." As stated (at p. 162) by
Kingsmill Moore J. in that judgment:— "The facts of individual cases vary so widely that any hard and fast rules
of a general nature seem to me dangerous and I would again leave the exclusion or non-exclusion to the discretion
of the trial judge." It will be noted that, when exercising its discretion under the discretionary rule, the court has to
consider how best the public interest is served; whilst, if the case is one for the application of the exclusionary rule,
the trial judge is required to consider whether there are any extraordinary circumstances in the case and, if so,
whether these are such as would justify him excusing the violation of the accused's constitutional rights.
Thirdly, it is not every violation of an accused's constitutional rights that will attract the application of the
exclusionary rule. The violation must have been a "deliberate and conscious" one. To commit such an act, the
wrongdoer must have been aware of the existence of the constitutional right which he was violating and he must
deliberately and consciously have made up his mind to violate it. But, if these factors exist, it is clear from
Madden's Case 21 that the exclusionary rule is to be applied even if the wrongdoer acted from the highest motives
and in no way mala fide. However, if these factors
The applicant, John Shaw, was charged before Mr. Justice Costello and a jury on three counts relating to the
forcible abduction and subsequent murder of Mary ____ in the month of September, 1976. The charges alleged that
the applicant forcibly abducted Mary ____ at or near Castlebar on the 22nd September, 1976, that between the 22nd
and the 27th September, 1976, he had carnal knowledge of her without her consent and that he murdered her
between the same dates. The applicant was convicted on all counts after a trial lasting 14 days and he now applies
for leave to appeal on the grounds that the trial judge erred in law in admitting certain evidence.
The salient facts of the matter are as follows. On Sunday, the 26th September, 1976, at about 11.30 p.m. the
Gardaà stopped a car at Salthill in the county of Galway and detained the driver, Geoffrey Evans, and the
applicant, who was a passenger sitting beside the driver. Evans was told that he was being arrested on suspicion of
being in possession of a stolen car and
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the applicant was told that he was being taken to the station for questioning; he was brought first to the Salthill
garda station and then he was transferred to the Galway garda station at about 00.30 a.m. on the morning of
Monday the 27th September. Before the applicant was brought to the Galway station, he was interviewed by
Superintendent Colleran in Salthill; the applicant was told by the superintendent that he believed that the applicant
was not giving his correct name and the superintendent said that he would not let the applicant out of custody and
that he was detaining the applicant for being in possession of a car that was stolen. The applicant was put in a cell in
the Galway station until the Monday morning. There was a sitting of the District Court in Galway on the Monday
morning at about 10.30 a.m. but the applicant was not brought before the District Justice or before a peace
commissioner; he remained in the custody of the Gardaà until he was produced before a District Justice in
Wicklow on the evening of Wednesday, the 29th September, when he was remanded in custody on the present
charges and on similar charges relating to a girl named Elizabeth ____.
When the applicant and Evans were detained by the Gardaà at Salthill on the Sunday evening, they were
wanted for questioning in connection with the disappearance of Elizabeth ____. She was last seen at Brittas Bay in
the county of Wicklow on the 28th August, 1976, and no trace of her could be found despite extensive searches.
The names and descriptions of the applicant and Evans had been circulated to all garda stations. While the two men
were being sought by the GardaÃ, Mary ____ disappeared at Castlebar on the 22nd September; the evidence in the
possession of the Gardaà indicated that she had been forcibly abducted in a motor car. When Superintendent
Colleran interviewed the two men in the Galway station on the Sunday night, he knew that they were the men
wanted for questioning in connection with the disappearance of Elizabeth ____; but he also suspected that they
were connected with the disappearance of Mary ____. Superintendent Reynolds, who was in charge of the enquiry
into the disappearance of Elizabeth ____, arrived in the Galway station early on the Monday morning and took
charge of the interrogation of the two men. Superintendent Reynolds also suspected that the applicant and Evans
were connected with the disappearance of Mary ____; he thought it unlikely that Elizabeth ____ was still alive as so
much time had elapsed since her disappearance and as extensive searches had disclosed no trace of her. He
considered that there was a good chance that Mary ____ was still alive and that, in that event, it might be vital to
her safety to discover her whereabouts as soon as possible; he regarded the safety of Mary ____ as
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1 I.R. McMahon J. C.C.A.
being more important than charging the applicant with relatively minor offences in relation to the stolen motor car.
The applicant was brought upstairs to a billiard room in the Galway station at about 11.30 a.m. on the Monday
and he was in this room from 11.30 a.m. to 3.30 p.m. in the presence of Sergeant McCaffrey and Garda Mark
Carroll. The applicant stayed silent and refused to talk or to answer any questions. At 3.30 p.m. Sergeant Tuohy and
Detective Garda Dwyer came into the room and the other gardaà left. The applicant then started talking about
general subjects and after some time he spoke of his movements at the end of August; he admitted to being in the
Brittas Bay area with Evans but denied any knowledge of Elizabeth ____. At 8.30 p.m. the two gardaà left the
room and were succeeded by Sergeant Nolan and Garda Kennedy. It was accepted by the defence that no improper
or aggressive questioning had taken place up to that time, and that the interview was properly conducted by the
gardaÃ. A short time after Sergeant Nolan and Garda Kennedy entered the room, the applicant became violent and
had to be forcibly restrained. These gardaà left the room at 10.30 p.m. During that time very little questioning of
the applicant took place because of his distressed condition. Sergeant Wright and Garda Nolan entered the room at
10.30 p.m. The applicant said nothing to them and was too distressed to talk; at 11.15 p.m. he was brought back to
his cell where he remained asleep until 4.00 a.m. on the Tuesday morning.
At that time the applicant was brought back to the billiard room by Detective Garda O'Connell and Detective
Garda Connolly and he made a statement which was reduced to writing by Detective Garda Connolly. After the
statement had been read over to the applicant, he put his mark at the end of it and this act was duly witnessed. The
statement is a complete confession of the charges on which the applicant has been convicted, and a confession of
the murder of Elizabeth ____. The applicant then made a further verbal statement which amounted to a confession
of having murdered Mary ____. Having made the statement (which was reduced to writing) the applicant agreed to
bring members of the Gardaà around Connemara and to show them where he had put Mary's body and where he
had killed her; he said that he wanted the body of the girl located so that her parents might bury her. The applicant
was then allowed to rest in his cell until about 1.30 p.m. when he went in a car accompanied by a number of
gardaÃ. On the applicant's directions the car stopped at a number of places in Connemara and the applicant showed
the gardaà where he had put Mary's body in Lough Inagh,
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where he had killed her and where he had burned articles of her clothing.
On this application it was submitted on behalf of the applicant that the learned trial judge erred in law in
admitting this evidence and that it should all have been excluded on the following grounds:—
1. That these statements and admissions by the applicant were not shown to be voluntary.
2. That the statements and admissions were obtained by a conscious and deliberate violation of the applicant's
constitutional rights because at the time he was being illegally detained and was deprived of his personal
liberty otherwise than in accordance with law, and in breach of Article 40; s. 4, sub-s. 1, of the
Constitution.
3. That there were no extraordinary circumstances to excuse the violation of the applicant's constitutional
rights so as to render the evidence admissible under the decision in The People (Attorney General) v.
O'Brien .11
Mr. Justice Costello, the trial judge, delivered a written judgment dealing with the objections to the admission
of this evidence taken on behalf of the applicant; in it he reviewed 2 the principles of law which require that a
confession must be shown to be voluntary before it can be admitted in evidence. It is a review which was carried
out with meticulous care and counsel for the applicant has not suggested that it errs in any respect; this Court
accepts it as a correct statement of the relevant principles.
Two grounds were advanced on the applicant's behalf in support of the contention that the trial judge ought not
to have been satisfied beyond reasonable doubt that the admissions were voluntary. It was alleged that the applicant
had been subjected to physical violence by the gardaà who were with him in the billiard room in the period from
8.30 p.m. to 10.30 p.m., and that this was corroborated by evidence from the gardaà that at the end of that period
the applicant was extremely distressed, his face was swollen and discoloured, he had an incipient black eye and he
was unfit to make a statement. The learned trial judge accepted the evidence of the two gardaà who were with the
applicant in the billiard room from 8.30 p.m. to 10.30 p.m. as to what took place during that period. The judge
found that the applicant, shortly after the gardaà entered the room, became violent and pushed a table against
Sergeant Nolan causing him to fall, that the applicant then ran with the chair over his head to the end of the room
and broke a pane of glass in a cabinet there, and that there was a violent tussle while the two gardaà tried to
The applicant appealed to the Supreme Court from the decision of the Court of Criminal Appeal. The appellant was
enabled to do so since the Court of Criminal Appeal granted the appellant a certificate pursuant to the provisions of
s. 29 of the Courts of Justice Act, 1924.
The certificate of the Court of Criminal Appeal was in the following terms:— "The Court doth certify that the
decision herein involves a point of law of exceptional public importance, viz. 'Whether the continued detention of
the accused John Shaw after 10.30 a.m. on Monday, the 27th day of September, 1976, being the approximate time
at which a District Justice was available, was lawful by reason of the obligation of the Gardaà to attempt to
vindicate the right to life of Elizabeth ____ and/or Mary ____ and, if so, whether the statements made by the said
accused on the 27th and 28th days of September, 1976, were admissible for that reason'; and that it is desirable in
the public interest that an appeal should be taken to the Supreme Court."
The appellant's appeal to the Supreme Court was heard on the 21st-24th January, 1980.
J. H. G. Lovatt-Dolan S.C. (with him E. F. Comyn S.C. and K. C.O'Higgins ), for the respondent, raised the
preliminary point that the appellant's appeal ought to be confined to the matters contained in the certificate given by
the Court of Criminal Appeal. He referred to The People (Attorney General) v. Conmey 32 ; The Attorney General
for Northern Ireland v.Gallagher 33 and The People v. Murray .34
[1982] The People v. Shaw 25
1 I.R. McMahon J. S.C.
A. J. C. Mackey S.C. (with him P. J. Geraghty S.C. and N. Fennelly S.C. ), for the appellant, referred (in
relation to the preliminary point) to Deaton v.The Attorney General 35 ; The People (Attorney General) v. Quinn 36
and The People (Attorney General) v. Giles .37
A. J. C. Mackey S.C. and P. J. Geraghty S.C. (with them N. Fennelly S.C. ), for the appellant:
There has been no reported case in which evidence obtained by unlawful means, by the State or its servants,
has been held to have been rendered admissible because of extraordinary excusing circumstances. In The People
(Attorney General) v. O'Brien 11 no question of extraordinary excusing circumstances arose; the illegally obtained
evidence was admitted because the violation of constitutional rights which had led to its procurement was so plainly
accidental and inadvertent. There is no inconsistency between evidence having been obtained in perfect good faith
and with the genuine object of the due investigation of a crime and its having been obtained in deliberate and
conscious violation of an accused person's constitutional rights: The People v. Madden .21
A statement may be rejected where it is shown to have not been made voluntarily, although it has not been
shown that there was any impropriety in the conduct of the person to whom the statement was made: Director of
Public Prosecutions v. Ping Lin .39 [They also referred to The People (Attorney General)v. Flynn 38 and to R. v.
Warickshall 40 ] In this case, the statements made by the appellant could not reasonably be regarded as voluntary,
having been obtained in consequence of a lengthy and systematic interrogation designed to break down the
resistance of the appellant and lead him to incriminate himself. The statements were obtained long after the
Gardaà both could and should have brought the appellant before a District Justice and confronted the appellant
with the charges made against him; Dunne v. Clinton 1 ; The People v. Walsh .10 [They also referred to R. v.
Priestley 29 ] At the stage at which the statements were made by the appellant, the Gardaà had already sufficient
evidence to charge him and his co-accused with the murder of Elizabeth ____.
By that time the detention of the appellant without charge had become unlawful, and it could not have been
made lawful by any information which might subsequently be obtained. If the main object of the continued
detention by the Gardaà of the two accused really was to vindicate Mary's right to life, there was one very simple
course which they totally neglected to
[1982] The People v. Shaw 26
1 I.R. Walsh J. S.C.
pursue, i.e., that of straightforwardly asking the appellant at an early stage whether Mary was alive.
J. H. G. Lovatt-Dolan S.C. (with him E. F. Comyn S.C. and K. C.O'Higgins ), for the respondent:—
The dominant motive for the continued detention of the appellant and his co-accused during the period when
the statements were made was the desire of the Gardaà to discover the whereabouts of the two missing girls and, if
possible, to save the life of Mary ____. The anxiety and hope of the Gardaà to safeguard Mary's right to life was
sufficient to render lawful their continued detention of the two men pending full inquiries; alternatively, if such
continued detention were unlawful, that desire and hope constituted sufficient extraordinary excusing circumstances
to render admissible the evidence which was obtained in the course of, or as a result of, that unlawful detention.
Cur. adv. vult.
After a trial lasting 14 days the appellant was convicted in the Central Criminal Court on the 9th February,
1978, of the offence of murder, of the offence of rape and of the offence of false imprisonment. The victim in each
case was Mary ____. The offence of murder was alleged to have taken place in the county of Galway, as also was
the offence of rape. The false imprisonment was alleged to have taken place in the county of Mayo. The first two
offences were laid as having been committed between the 22nd and the 27th September, 1976, and the third offence
was laid as having been committed on the 22nd September, 1976. On the charge of murder the appellant was
sentenced to the mandatory statutory penalty of penal servitude for life and on the charge of rape he was sentenced
to a period of 14 years penal servitude. For the offence of false imprisonment he was sentenced to a period of two
years imprisonment. All the sentences were directed to run concurrently from the 9th February, 1978. An
application for a certificate for leave to appeal to the Court of Criminal Appeal was refused by the trial judge, Mr.
Justice Costello.
The appellant applied to the Court of Criminal Appeal for leave to appeal against the convictions. For the
moment it is not necessary to refer to the grounds which were advanced in support of the application for leave to
appeal. It is sufficient to say that on the 22nd May, 1979, the Court of
[1982] The People v. Shaw 27
1 I.R. Walsh J. S.C.
Criminal Appeal delivered judgment refusing the application for leave to appeal. That court granted a certificate3
of leave to appeal to this Court pursuant to s. 29 of the Courts of Justice Act, 1924, as applied and continued in
force by the provisions of s. 48 of the Courts (Supplemental Provisions) Act, 1961.
In his notice of appeal to this Court, the appellant set out his grounds of appeal, which were the same as those
grounding his application in the Court of Criminal Appeal for leave to appeal.
"1. That the provisions of the Constitution do not permit the Garda SÃochána to deprive the appellant of his
personal liberty in the belief that such deprivation might vindicate the constitutional right or rights of another
citizen.
2. That the learned trial judge misdirected himself in law in admitting for the consideration of the jury
evidence of the statements and each of them, oral and otherwise, alleged to have been made by the accused
between the hours of 4 a.m. and 12.43 p.m. on Tuesday, the 28th September, 1976, at Eglinton Street garda
station, Galway, on the grounds:—
(a) There was no or no sufficient evidence adduced by the prosecution to establish the voluntary nature of
the said alleged statements.
(b) That the making of the said alleged statements by the accused was obtained or procured by the
deliberate and conscious violation of the constitutional rights of the accused.
(c) That the alleged statements so obtained or procured in violation of the constitutional rights of the
accused were not rendered admissible by any circumstances, excusatory or otherwise, established by
the evidence.
3. That the learned trial judge misdirected himself in law in admitting for the consideration of the jury the
evidence of alleged statements and acts of the accused whilst in custody of the Gardaà on the journey through
Connemara on the afternoon of Tuesday, the 28th September, 1976, on the grounds:—
(a) That the voluntary nature of the said alleged acts and/or statements of the accused whilst in custody on
the said journey was not established by the prosecution.
(b) That the said alleged statements and acts of the accused were obtained and procured by the deliberate
and conscious violation of the constitutional rights of the accused.
(c) That the said alleged statements and acts so obtained or procured in
"It has been stated many times in our Courts that there is no such procedure permitted by the law as 'holding
for questioning' or detaining on any pretext, except pursuant to a court order or for the purpose of charging and
bringing the person detained before a court. Any other purpose is unknown to the law and constitutes a flagrant
and unwarranted interference with the liberty of citizens."
That was the view of the Court. To show that it is not a view peculiar to this Court, it is as well to refer to R.
v. Lemsatef 2 where the view of the Criminal Division of the (English) Court of Appeal was expressed as follows
by Lawton J. at p. 816 of the report:—
"The law is clear. Neither arrest nor detention can properly be carried out without the accused person being
told the offence for which he is being arrested. There is no such offence as 'helping police with their inquiries'.
This is a phrase which has crept into use, largely because of the need for the press to be careful about how
[1982] The People v. Shaw 30
1 I.R. Walsh J. S.C.
they report what has happened when somebody has been arrested but not charged. If the idea is
getting around amongst either Customs and Excise officers or police officers that they can arrest or
detain people, as the case may be, for this particular purpose, the sooner they disabuse themselves
of that idea, the better."
It is also necessary to point out that if a person is arrested or deprived of his liberty for the purpose of being
questioned or interrogated, such arrest or deprivation of liberty constitutes a violation of article 5 of the European
Convention of Human Rights and Fundamental Freedoms: see Ireland v. The United Kingdom .44
Even the Offences Against the State Act, 1939 (which has no relevance whatever to the present case) does not
purport to give any such power. Section 30 of that Act, which permits the arrest and detention of suspected persons,
only permits a person to be arrested where a member of the Garda SÃochána suspects that that person has
committed or is about to commit, or is or has been concerned in the commission of, an offence under any section or
sub-section of that Act or an offence which, for the time being, is a scheduled offence for the purposes of Part V of
the Act, or whom he suspects of carrying a document in relation to the commission or the intended commission of
any such offence, or whom he suspects of being in possession of information in relation to the commission or
intended commission of any such offence as aforesaid. Any arrest under that section which is not based upon such a
suspicion is illegal and contrary to the Constitution. While it is true that a person may be interrogated after he has
been arrested (or even without being arrested at all), what is quite clear is that the desire to interrogate him cannot
be put forward as the justification for his arrest. Section 52 of the Act of 1939 permits a person who has been
lawfully arrested under s. 30 to be questioned in respect of the matters specified in that section and makes it an
offence to refuse to give the information sought, or to give information which is false or misleading. No such
obligation is placed upon any person who has not been lawfully arrested. It is further to be noted that s. 30 of the
Act of 1939 expressly provides that a suspected person who has been arrested in accordance with the provisions of
that section must either be released or charged before the District Court or the Special Criminal Court before the
expiration of the period specified in the section, thus emphasising that even under that Act the purpose of arresting
people is for the purpose of charging them before a court.
5. A person who is arrested for the purpose of being charged and being
[1982] The People v. Shaw 31
1 I.R. Walsh J. S.C.
brought before a court and who has not been brought before a court within a reasonable time is, from that moment,
being subjected to unlawful imprisonment. The reasonable period for bringing him before the court may vary
according to the circumstances of each case. Such a supervening of unlawful imprisonment does not render
unlawful the imprisonment which endured from the time of the original arrest until the expiration of the time when
he ought to have been brought before a court: Dunne v. Clinton 1 ; The People v. Walsh .10
6. An arrest which is unlawful initially may become lawful as from the point of time when such arrest
complies with the requirements of lawful arrest and may then, if it continues beyond the period permitted by law,
again become unlawful. Neither the initial unlawful imprisonment nor the subsequent unlawful imprisonment
renders unlawful or invalid the intervening lawful period of imprisonment: Dunne v. Clinton 1 ; The People
v.Walsh .10
7. Evidence which is tendered at a trial of a criminal offence and which has been obtained by methods which
are illegal may be admitted at the trial at the discretion of the trial judge, provided that the illegal methods used did
not amount to a deliberate and conscious violation of the constitutional rights of the accused: The People (Attorney
General) v. O'Brien .11
8. Subject to paragraphs 9 and 10, evidence obtained as a result of deliberate and conscious violation of the
constitutional rights of an accused person may not be admitted at the trial of that person: The People (Attorney
General) v. O'Brien 11 ; The People v. Walsh 10 ; The People v. Madden .21
9. There can be extraordinary excusing circumstances (such as the imminent destruction of vital evidence or
the need to rescue a victim in peril, or other extraordinary excusing circumstances) surrounding the conscious and
deliberate violation of the constitutional rights of an accused which, in the opinion of the trial judge, may justify the
admission of the evidence so obtained: The People (Attorney General) v. O'Brien 11 ; The People v. Walsh .10
10. If the act which amounts to a breach of the constitutional rights of the accused person was committed
unintentionally or accidentally, the evidence may be admitted at the discretion of the trial judge if it is otherwise
admissible: The People (Attorney General) v. O'Brien 11 ; The People v. Walsh .10
11. The principles enunciated at Nos. 8, 9 and 10 apply to voluntary statements made by an accused person as
well as to other types of evidence obtained: The People v. Madden .21
12. Where it appears that there has been a breach of the constitutional
[1982] The People v. Shaw 32
1 I.R. Walsh J. S.C.
rights of the accused, the onus of establishing the existence of "extraordinary excusing circumstances" or of
mistake, or lack of intention or accident, is upon the party seeking to adduce the evidence: The People v. Madden
21 ; The People v. Walsh .10
13. When the act complained of was undertaken or carried out consciously and deliberately, it is immaterial
whether the person carrying out the act may or may not have been conscious that what he was doing was illegal or,
even if he knew it was illegal, that it amounted to a breach of the constitutional rights of the accused. It is the doing
of the act which is the essential matter, not the actor's appreciation of the legal consequences or incidents of it: The
People v. Madden .21
I feel that I should elaborate a little upon my reference to The People (Attorney General) v. O'Brien 11 as,
from time to time, there appears to be some confusion as to what the case decided. As I had the advantage of being
a member of the Court which gave that decision, I feel that I am in a position to deal with it. The case and the
decision dealt primarily with two matters concerning the admissibility of evidence. The first was the question of the
admissibility of evidence which was obtained illegally but where the illegality did not amount to an infringement of
a constitutional right of the accused person. The second point was the question of the admissibility of evidence
obtained by illegal methods which constituted infringements of the accused's constitutional rights. With regard to
the first point, the majority of the Court decided that evidence obtained illegally could be admissible at the
discretion of the judge, whereas the minority members of the Court took the view that such evidence was always
admissible provided that it was relevant and probative. With regard to the second point, the basic proposition was
that an objection to the admissibility at a criminal trial of evidence obtained or procured by the State, its servants or
agents, as a result of a deliberate and conscious violation of the constitutional rights of the accused person must be
upheld, subject to certain exceptions. This general proposition was contained in my own judgment and was agreed
to by all the members of the Court. I expressed the view that an exception to this general rule would be
where"extraordinary excusing circumstances" existed and I gave three examples, namely, the imminent destruction
of vital evidence, the need to rescue a victim in peril, and also evidence obtained by a search which was incidental
to and contemporaneous with a lawful arrest, though made without a valid search warrant. I said that, in addition to
these "extraordinary excusing
[1982] The People v. Shaw 33
1 I.R. Walsh J. S.C.
circumstances", evidence obtained without a deliberate and conscious violation of an accused's constitutional rights
was not inadmissible by reason only of the existence of a violation of his constitutional right. In other words,
accidental and unintentional infringements of the Constitution would not be sufficient to exclude such evidence.
It is important to emphasise that "extraordinary excusing circumstances" and "accidental and unintentional
infringement of the Constitution" are quite separate matters. Kingsmill Moore J. in his judgment accepted the
general proposition and also agreed that there might be certain"extraordinary excusing circumstances" which would
warrant the admissibility of such evidence, but he preferred not to attempt to enumerate such extraordinary
excusing circumstances by anticipation. He also expressly agreed that an accidental and unintentional infringement
of the Constitution would not normally exclude evidence so obtained. His disinclination to attempt to enumerate all
the cases which might amount to excusing circumstances was shared by all the members of the Court. He was thus
leaving open the question of what could amount to extraordinary excusing circumstances and he was not prepared
to enumerate them by anticipation. He took the view that circumstances of cases vary so widely that it would be a
matter for the discretion of the trial judge to decide whether or not the circumstances which were pleaded in excuse
of the violation of the constitutional right in question were such as to amount to "extraordinary excusing
circumstances." The examples of these given in my own judgment were simply illustrative and did not claim to be
exhaustive.
O'Brien's Case 11 was examined recently by this Court in The People v.Walsh 10 and the views I now express
were the views of the Court in that case. It is also necessary to emphasise that nothing in the admissibility rule
renders lawful what was and is unlawful. By definition the question of admissibility arises only because there was
an illegality.
I might add that there is nothing whatever in O'Brien's Case 11 to suggest that the admissibility of the
evidence depends upon the state or degree of the violator's knowledge of constitutional law or, indeed, of the
ordinary law. To attempt to import any such interpretation of the decision would be to put a premium on ignorance
of the law. The maxim ignorantia legis neminem excusat does not permit an intentional and deliberate act or
omission to be shorn of its legal consequences. It is appropriate to point out that the opinion of this Court on a
similar subject was expressed as follows at p. 134 of the report of The State (Quinn) v. Ryan 45 :—
[1982] The People v. Shaw 34
1 I.R. Walsh J. S.C.
"A belief, or hope, on the part of the officers concerned that their acts would not bring them into conflict with
the Courts is no answer, nor is an inadequate appreciation of the reality of the right of personal liberty
guaranteed by the Constitution."
To hold otherwise would be to hold what to many people would be an absurd position, namely, that the less a
police officer knew about the Constitution and, indeed, of the law itself, the more likely he would be to have the
evidence which he obtained in breach of the law (and/or the Constitution) admitted in court. If such indeed were the
position, it could well lead to a demand that the interests of equality of treatment should permit an accused person
to be allowed to be heard to the effect that he did not know that the activity of which he was charged, and which has
been proved against him, amounted to a breach of the criminal law. In The People v.Madden 21 the learned Chief
Justice said at p. 347 of the report:—
"The court of trial appears to have sought an element of wilfulness or mala fides in the conduct of the Garda
officer and, not finding such, to have concluded that the deprivation of constitutional rights was not deliberate
and conscious. In the view of this Court to adopt that approach is to misunderstand the decision in O'Brien's
Case 11 and, accordingly, to err in law. What was done or permitted by Inspector Butler and his colleagues
may have been done or permitted for the best of motives and in the interests of the due investigation of the
crime. However, it was done or permitted without regard to the right to liberty guaranteed to this defendant by
Article 40 of the Constitution and to the State's obligation under that Article to defend and vindicate that right."
In the result the evidence was held to be inadmissible and the defendant Madden was set free.
The appellant was first arrested at about 11.30 p.m. on Sunday, the 26th September, 1976, at Salthill in the
county of Galway. At that time the appellant was a passenger in a car driven by Geoffrey Evans. Evans was told
that he was being arrested on suspicion of being in possession of a stolen car. Whether the garda had in mind the
offence of receiving property known to have been stolen or the offence of unlawful possession which is made an
arrestable offence by virtue of s. 13 of the Criminal Justice Act, 1951, does not really matter as, in either event, the
garda officer had lawful authority to effect the arrest of Evans. The appellant was also arrested but was told that he
was being taken to the garda station for questioning. He was first brought
[1982] The People v. Shaw 35
1 I.R. Walsh J. S.C.
to the Salthill station and then transferred to the Galway station at about 00.30 a.m. on the morning of the 27th
September. Before he left the Salthill station he was informed that he was being kept under arrest for being in
possession of a car that was stolen. In my view, his arrest was unlawful up to that time but, as from that moment, it
was lawful. When he reached the Galway station, he was put in a cell until Monday morning. No other complaint or
charge was mentioned to him. While he was in custody on the Sunday night, the appellant asked the garda officer in
charge if he "could get him a solicitor." He was informed that the officer had no function in "getting him a
solicitor." In evidence the officer stated that he understood the request to be that he, the officer, should choose a
solicitor for him. This was accepted by the trial judge. A prisoner in that situation has a constitutional right to
access to a legal adviser: see this Court's judgment in The Emergency Powers Bill 1976 46 ; The People v. Doyle .
47 The garda officer's reply seems to me to be somewhat disingenuous. It is not too much to expect that every garda
station should have a list of all local solicitors to supply to prisoners when a request for a solicitor is made, so as to
enable the prisoner to make a choice — particularly if he is a stranger in the area or has not already the name of a
solicitor whom he wishes to contact. As was pointed out in The People v.Madden 21 at p. 355-356 of the report,
while there may be no legal obligation on the Garda SÃochána to proffer, without request, the assistance of a legal
adviser to a person under arrest, a refusal of a request of reasonable access to a legal adviser would render the
detention illegal.
There was a sitting of the District Court in Galway on the Monday morning at 10.30 a.m. but the appellant was
not brought before the court, or, indeed, before a peace commissioner. He remained in the custody of the GardaÃ
until his first appearance before a court which was at the District Court in Wicklow on the evening of Wednesday,
the 29th September, when he was remanded in custody on the offences of which he was subsequently convicted,
and on certain other charges. Until the court sitting in Galway on the Monday, the appellant was in lawful custody
as from the time when he had been informed at the Salthill garda station that he was being arrested for the
possession of a stolen motor car. During that period the garda officer in charge at the Galway station was aware that
the appellant was sought by the garda authorities in the county of Wicklow in respect of the disappearance of a
young woman named Elizabeth ____ on or about the 28th August, 1976. The appellant's companion (Evans), who
had also been arrested in Galway, was also sought by the Wicklow gardaà in connection with the same incident
[1982] The People v. Shaw 36
1 I.R. Walsh J. S.C.
in Wicklow. The gardaà in Galway were also conscious of the disappearance of Mary ____ at Castlebar on or
about the 22nd September and the garda officer in charge suspected that the two men he had arrested were
connected with that disappearance.
During the course of the Monday both Evans and the appellant were interrogated by the garda authorities in
the Galway station about the disappearance of Elizabeth ____. During the period of this interrogation the arrest of
both Evans and the appellant had ceased to be lawful and they were at that time unlawfully imprisoned. That was
deliberately and consciously done in the hope of obtaining information concerning both Elizabeth and Mary, and
also in the hope and expectation that there might still be a possibility of discovering Mary alive. The garda officers
did not believe, and had no reason to believe, that Elizabeth was still alive. Their concern was the possibility of
Mary being alive. Throughout the Monday the appellant was questioned at length. Towards the end of the day he
became so distressed that the interrogating officers felt that there was no further purpose in continuing the
questioning and he was allowed to go to bed. In the meanwhile it appears that sometime on the same evening
Evans, who had been questioned separately in another part of the station, had signed what, in effect, was a full
confession admitting the murder of Elizabeth ____ by himself and the appellant. According to the evidence, the
gardaà who had been interrogating the appellant were unaware of that situation. However, it is quite clear that by
the evening of Monday, the 27th September, the garda authorities in that station had sufficient evidence upon which
to found a reasonable belief that both Evans and the appellant had committed a murder. If the gardaà had chosen to
do so, that would have been sufficient to charge both men with that offence and the custody could thus have again
become lawful. However, at no stage on the Monday was the appellant informed of the fact that a statement
incriminating him had been made by Evans, nor was any suggestion made to the appellant that he was being held in
respect of the death of Elizabeth.
Being in a distressed condition, the appellant was permitted to go to bed at 11.15 p.m. At 4 a.m. on the
following (Tuesday) morning, he was brought upstairs again for further questioning. He was described as being
then completely different in his condition from that of the previous night, and as being relaxed and calm. He was
then told by one of the detective officers present that he should tell the truth, and the detective officer said:— "I
know everything, I have just been with Geoffrey" — which was a reference to
[1982] The People v. Shaw 37
1 I.R. Walsh J. S.C.
Evans. The appellant then made a statement to the gardaà and concluded it at about 6.50 a.m. The statement
amounted to a confession that the appellant was guilty of all the offences of which he was subsequently convicted.
The officer who interviewed the appellant after his interrogation had recommenced at 4 a.m. on the Tuesday
morning was already aware that Evans had made a statement admitting to the murder of Elizabeth ____, and
incriminating the appellant. Evans had not made any reference to the fate of Mary ____. The officer interrogating
the appellant on the Tuesday morning was aware of these facts and, when he told the appellant that he had been
speaking to Evans and that he "knew the whole story", he did not tell the appellant that Evans had been speaking
only of Elizabeth. That interrogating officer knew that Evans had stated that Elizabeth had been kept alive for a
considerable time before she was killed and, to use his own words, the officer felt "that there was a possibility that,
if they had been involved in the disappearance of Mary ____, there was a hope that she was still alive some place
and I was very concerned to establish the truth."
The procedure adopted in this interrogation was directly authorised by Detective Superintendent Reynolds in
the hope that both Elizabeth and Mary might be still alive; he took the considered decision that to continue to detain
the appellant and Evans in the garda station and to interrogate them was more important than bringing them before
a court on charges. There has never been any claim, even if it were relevant, that Detective Superintendent
Reynolds was at any time unaware of the law dealing with the disposal of arrested persons, or of their constitutional
rights. He regarded the charge on which both men had been held (i.e., the possession of a car believed to have been
stolen) to be simply a minor offence by comparison with the safety of the girls which was his concern. As Detective
Superintendent Reynolds had actually been engaged in the taking of the statement from Evans at 10 p.m. on the
Monday night, he was aware from that statement that Elizabeth was already dead. He felt that there was such a
similarity between the disappearance of Elizabeth and that of Mary that he should continue pressing his inquiries in
the hope that Mary might still be alive. With regard to the position or the possible whereabouts of Mary, he
considered that the fact that Elizabeth had been kept alive for almost 24 hours before she met her death (according
to Evans) suggested that there was a hope that Mary might still be found while alive. By 9 a.m. on the Tuesday
morning he was aware from the statement which had been made by the appellant, and which had been
communicated to him, that Mary was already dead. At no time before the
[1982] The People v. Shaw 38
1 I.R. Walsh J. S.C.
appellant had made the statement incriminating himself in relation to the death of Mary had he been told anything
about the Gardaà knowing of his involvement with Elizabeth; nor did they at any time purport to arrest him, or to
tell him that he was being held in custody, in relation to Elizabeth. Therefore, the officer in charge of the
investigation (Detective Superintendent Reynolds) from 10 p.m. on the Monday night until approximately 9 a.m. on
the Tuesday morning had a reasonable belief that Mary might still be alive, according to his own evidence. It is
quite clear that the continued arrest of the appellant was illegal as from 10.30 a.m. on Monday, the 27th September,
1976; no attempt was made by the garda witnesses to suggest otherwise. In fact Detective Superintendent Reynolds
stated quite clearly in his evidence that it had been his intention to continue to detain the appellant until the matter
was cleared up one way or the other that is to say, until he was satisfied that the appellant had nothing whatever to
do with the disappearance of Mary or until he was satisfied that the appellant had something to do with it; in the
latter event he was anxious to ascertain the whereabouts of Mary.
When the appellant had confessed to the murder of Mary, Detective Superintendent Reynolds contacted the
Director of Public Prosecutions by telephone and informed him of the statements which Evans and the appellant
had made. Following his discussion with the Director of Public Prosecutions, he made arrangements to take the two
men out to Lough Inagh where, it was alleged, the body of Mary had been disposed of, and to take them to other
places where she had been detained and where certain items of her clothing etc. had been burned and where other
items had been concealed. Evans and the appellant had volunteered to go with the gardaà to these places for the
purpose of pointing out such places. After this journey, which was referred to generally in the evidence as "the
Connemara episode," the gardaà and the two men arrived back in Galway. At no stage was either of them charged
in Galway or brought before any court or peace commissioner. As stated already, the appellant and Evans were then
brought to the garda station in Wicklow; they appeared before a court for the first time in Wicklow on Wednesday,
the 29th September.
Detective Superintendent Reynolds also stated in evidence that he had not been sure that he had been told the
truth by either Evans or the appellant in so far as they spoke of the death of Mary; he said that if the body had not
been found where they said they had put it there would have been a possibility that she might still have been alive.
When the party of gardaà and
[1982] The People v. Shaw 39
1 I.R. Walsh J. S.C.
the accused arrived at Lough Inagh, the accused looked out over the lake and said "That is the place" and later said
"We rode round for some time before we dumped the body of the girl from Castlebar." In the course of the journey,
the appellant also indicated and identified other places where he said they were when "we burned some of her
clothes here" and he gave other indications, all of which were incriminating.
It is clear from the evidence given by the various garda witnesses that the decision to keep the appellant under
arrest without charging him in respect of any offence (other than that of being in possession of a motor car believed
to be stolen) was made consciously and deliberately and with the express purpose which has already been stated.
Even after the prisoners' admissions of murder, they were still not charged. In my view it is quite clear on the
evidence that the appellant's continued arrest after 10.30 a.m. on Monday, the 27th September, was unlawful. Thus
it was a violation of his constitutional right to be at liberty unless he was arrested in accordance with the law. The
necessary ingredients or constituents of an arrest in accordance with the law have already been set out in the earlier
part of this judgment.
If all other things were equal, the evidence discovered as a result of an unlawful arrest which persisted during
the Connemara episode would be wholly inadmissible. However, in this case all other things were not equal
because the appellant, notwithstanding the continuing unlawfulness of his arrest while he was in the Galway garda
station, had volunteered to go with the garda officers to point out various places which he had already indicated,
and to that extent, on the evidence, he freely and voluntarily disclosed and uncovered items of evidence which
incriminated him. I do not think that the evidence which was disclosed during the Connemara episode could be
rendered admissible on the basis of a reasonable belief on the part of the garda officers concerned that there was
still a hope of finding Mary alive. No reasonable ground existed for such a belief as a statement had already been
made which quite clearly indicated that the appellant had taken part in the killing of Mary. In the circumstances, I
do not think that it could be held that the garda officers concerned had any reasonable belief during the Connemara
episode that Mary might be found to be alive and that they might be in time to save her from death. I think that the
test of such a reasonable belief must be an objective one and that, if a garda officer in the situation of the
Connemara episode had a belief that could not be held to be a reasonable one, such a belief is not sufficient to
constitute an extraordinary excusing circumstance within the meaning of O'Brien's Case 11 for the purpose of
admitting the
[1982] The People v. Shaw 40
1 I.R. Walsh J. S.C.
evidence so obtained. However, by reason of the fact that the appellant voluntarily offered to go with the garda
authorities to the various locations visited during the Connemara episode, and by reason of the absence of any
evidence which would indicate that he was in any way an unwilling participant in the expedition, a judge would be
entitled to hold that, while the appellant was all the time under arrest (that is to say, he was not free to leave the
custody of the gardaà at will) during that particular episode, he consented to such a condition prevailing. In the
result, the appellant may be held to have submitted himself voluntarily to a condition of imprisonment during that
episode so that the admission of the evidence obtained did not in my opinion fall to be objected to on the ground
that he was unlawfully imprisoned at that time. It is also clear that the indication and the procuring of the evidence
by the appellant during that episode was voluntary. Therefore, there does not appear to me to be any ground to hold
that the evidence was not voluntarily disclosed by the appellant.
Therefore, for the reasons I have already given in the course of this judgment, I am of opinion that the grounds
of appeal set out in paragraphs 2 and 3 of the notice of appeal are not sustainable.
So far as paragraph 4 of the grounds of appeal is concerned, the points therein made were abandoned by
counsel for the appellant during the hearing of the appeal in this Court.
That brings me to paragraph 1 of the notice of appeal, which must be taken in conjunction with the point of
law certified by the Court of Criminal Appeal in its certificate.4 The net question is whether an arrest or
imprisonment which is not in accordance with law can be rendered lawful by a belief that such arrest or
imprisonment may vindicate one or more of those rights of another citizen which the Constitution in Article 40, s.
3, guarantees to defend, protect and vindicate. In the instant case there arises the question of a belief that another
person's life, already imperilled, may be saved by effecting or maintaining an unlawful arrest or detention. In my
opinion the answer must be that the unlawful character of the act remains unchanged however well intentioned it
may be.
The Constitution expressly provides that no person may be deprived of his personal liberty save in accordance
with law: Article 40, s. 4, sub-s. 1. There is nothing in the Constitution which authorises the commission of an
unlawful act. If an act is unlawful and the law or the laws which render it unlawful is or are not inconsistent with, or
invalid having regard to the provisions of the Constitution, it is quite clear that the Constitution cannot
The question is now being raised as to whether the decision of the majority of the Court may be disregarded as
being simply an obiter dictum. I do not think that any judge would wish any statement which he might have made
casually and as mere obiter to be treated as necessarily being an authority on the subject in question. However,
when, as in Conmey's Case 32 , a fundamental issue is elaborately and substantially argued and the Court thinks it
necessary for the purpose of the case to make an exhaustive and deliberate examination of the law and of the
relevant constitutional provisions and, in the result, to state the law, the authority of such a statement of the law
cannot be got rid of simply by claiming that it was not really necessary for the actual decision of the case. As was
shown in the judgments of the majority of the Court it was necessary, both in fact and in law, to resolve the issue
for the purpose of their decision. This the judgments clearly demonstrate. Of course, some members of any court
may from time to time be less than happy with some particular decision, but any such feeling cannot acceptably
warrant either ignoring the decision so elaborately argued and decided or treating it as only "a remark by the way."
Kenny J.
I have had the advantage of reading the judgment of Mr. Justice Griffin
[1982] The People v. Shaw 62
1 I.R. Kenny J. S.C.
and am in complete agreement with it. There is, however, one aspect of the case on which I wish to elaborate.
The Constitution of Saorstát Éireann , 1922, had to be imposed on those statutes of the Irish Parliament
which were still in force in 1922, on the statutes of the Imperial Parliament of the United Kingdom of Great Britain
and Ireland which applied to Ireland and were still in force in that year, and on the judge-made law effective in that
year. These together constituted the corpus of our law in 1922 and any part of them which was inconsistent with
any provision of the Constitution of 1922 was invalid: see Article 73 of that Constitution.
The Constitution of Ireland, 1937, had to be imposed on those statutes of the Irish Parliament which were still
in force on the 29th December, 1937 (the date when the Constitution came into force), on those of the Imperial
Parliament of the United Kingdom of Great Britain and Ireland which applied to Ireland and were still in force on
the 29th December, 1937, on those Acts of the Oireachtas passed up to that date and still in force, and on the judge-
made law which was effective on that date. These together constituted the corpus of our law on that date and any
part of them which was inconsistent with any provision of the Constitution of 1937 was invalid: see Article 50 of
that Constitution.
When the people enacted the Constitution of 1937, they provided (Article 40, s. 3) that the State guaranteed in
its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen
and that the State should, in particular, by its laws protect as best it might from unjust attack and, in the case of
injustice done, vindicate the life, person, good name and property rights of every citizen. I draw attention to the use
of the words "the State." The obligation to implement this guarantee is imposed not on the Oireachtas only but on
each branch of the State which exercises the powers of legislating, executing and giving judgment on those laws:
Article 6. The word "laws" in Article 40, s. 3, is not confined to laws which have been enacted by the Oireachtas
but comprehends the laws made by judges and by ministers of State when they make statutory instruments or
regulations.
As the law relating to the admission of statements made by accused persons is almost entirely made by judges,
we are bound, when making the law to be administered in the Courts, to implement the guarantees in s. 3 of Article
40.
If it had been the only matter to be considered and if it had not been
[1982] The People v. Shaw 63
1 I.R. Kenny J.; Parke J. S.C.
justified by the necessity to vindicate the superior constitutional right of another person, the detention of the
appellant by the Gardaà after 10.30 a.m. on the 27th September, 1976, would have been an undoubted breach of his
constitutional right to personal liberty and a breach of s. 15 of the Criminal Justice Act, 1951. However, the right of
Mary ____ to life (which right Detective Superintendent Reynolds was trying to protect and vindicate by detaining
the appellant after 10.30 a.m. on the 27th September) was a constitutional right which ranked above that of the
appellant.
There is a hierarchy of constitutional rights and, when a conflict arises between them, that which ranks higher
must prevail. This is the law for the exercise of all three powers of Government and flows from the conception that
all three powers must be exercised to promote the common good: see the preamble to the Constitution. The decision
on the priority of constitutional rights is to be made by the High Court and, on appeal, by this Court. When a
conflict of constitutional rights arises, it must be resolved by having regard to (a) the terms of the Constitution, (b)
the ethical values which all Christians living in the State acknowledge and accept and (c) the main tenets of our
system of constitutional parliamentary democracy.
When passing judgment on the actions of the Garda SÃochána, we must remember that they have to make
many immediate decisions and cannot possibly get a court decision to guide them. Our function is to decide
whether the choice they made in the priority of constitutional or legal rights was correct. I have no doubt that the
decision made by Detective Superintendent Reynolds to regard Mary's right to life as ranking higher than the
appellant's right to personal liberty for three days was the correct one. The detention of the appellant by the
Gardaà until Wednesday the 29th September, 1976, when he was brought before the District Court, was lawful in
my opinion.
It follows that the statements and admissions made by him during the period from 10.30 a.m. on the 27th
September until Wednesday the 29th September, 1976, were admissible in evidence. It was not a question of the
end justifying the means — a doctrine which most ethical teachers since Aristotle have repudiated. It was a
question of vindicating a higher ranking constitutional right.
Parke J.
I agree with the judgment delivered by Mr. Justice Griffin.
[1982] The People v. Shaw 64
1 I.R. Kenny J.; Parke J. S.C.
E. P. de B.
[1982] I.R. 1