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[1982] 1

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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7 John Lewis & Co. v. Tims [1952] A.C. 676.


8 Dallison v. Caffery [1965] 1 Q.B. 348.
9 The People v. O'Loughlin [1979] I.R. 85.
10 The People v. Walsh [1980] I.R. 294.
11 The People (Attorney General) v. O'Brien [1965] I.R. 142.
12 Jones v. Owens (1870) 34 J.P. 759.
13 Kuruma v. The Queen [1955] A.C. 197.
14 Adair v. M'Garry 1933 S.C.(J.) 72.
15 H.M. Advocate v. M'Guigan 1936 S.C.(J.) 16.
16 Lawrie v. Muir 1950 S.C.(J.) 19.
17 M'Govern v. H.M. Advocate 1950 S.C.(J.) 33.
18 Weeks v. United Staes (1914) 232 U.S. 383.
19 Silverman v. United States (1961) 365 U.S. 505.
20 Fahy v. Connecticut (1963) 375 U.S. 85.
21 The People v. Madden [1977] I.R. 336.
22 The People (Attorney General) v. Cummins [1972] I.R. 312.
23 Ibrahim v. The King [1914] A.C. 599.
24 McCarrick v. Leavy [1964] I.R. 225.
25 The Attorney General v. M'Cabe [1927] I.R. 129.
26 The People (Attorney General) v. Murphy [1947] I.R. 236.
27 The People (Attorney General) v. Galvin [1964] I.R. 325.
28 R. v. Prager [1972] 1 W.L.R. 260.
29 R. v. Priestley (1967) 51 Cr.App.R. 1.
30 R. v. Isequilla [1975] 1 W.L.R. 716.
31 R. v. Smith [1959] 2 Q.B. 35.
32 The People (Attorney General) v. Conmey [1975] I.R. 341.
33 The Attorney General for Northern Ireland v. Gallagher [1963] A.C. 349.
34 The People v. Murray [1977] I.R. 360.
35 Deaton v. The Attorney General [1963] I.R. 170.
36 The People (Attorney General) v. Quinn [1965] I.R. 366.
37 The People (Attorney General) v. Giles [1974] I.R. 422.
38 The People (Attorney General) v. Flynn [1963] I.R. 255.
39 Director of Public Prosecutions v. Ping Lin [1976] A.C. 574.
40 R. v. Warickshall (1783) 1 Leach 263.
41 Creagh v. Gamble (1888) 24 L.R.Ir. 458.
42 The Attorney General v. Cox (Court of Criminal Appeal: 9th April, 1929).
43 The Attorney General (McDonnell) v. Higgins [1964] I.R. 374.
44 Ireland v. The United Kingdom [1978] 2 E.H.R.R. 25.
45 The State (Quinn) v. Ryan [1965] I.R. 70.
46 The Emergency Powers Bill, 1976 [1977] I.R. 159.
47 The People v. Doyle (Court of Criminal Appeal: 16th November, 1976).

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

1 See [1979] I.R. 85.


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are absent and if, accordingly, the wrongful act is not a conscious and deliberate violation of constitutional rights,
then the court will apply the discretionary rule in the way proposed by Kingsmill Moore J.
Fourthly, if the accused's custody is illegal then he is not being detained in accordance with law and,
accordingly, the illegal act by which his unlawful detention takes place will involve automatically a violation of a
constitutional right. This is to be contrasted with cases in which the challenge to the evidence is based on an
illegality which does not deprive the accused of his liberty unlawfully. In such cases the wrongful act, although an
illegal one, may not involve any breach of a constitutional right.
Alleged confessions
1. The burden is on the prosecution to establish beyond a reasonable doubt that the alleged confession was a
voluntary one. The Supreme Court has followed the opinion of the Privy Council in Ibrahim v. The King 23 and
has held that the alleged confession must not have been obtained either by fear of prejudice or hope of advantage
exercised or held out by a person in authority: McCarrick v. Leavy .24
2. A confession may fail to be a voluntary one for reasons other than those specified in McCarrick v. Leavy .
24 For example, a trick or false pretence may have been employed which has such an effect upon a person that he is
constrained to follow a particular course even though it is not his wish to do so: see The People (Attorney General)
v. Cummins 22 at p. 328. Again, questioning by the police may be so aggressive that, when the alleged confession is
made, the accused may not have been a free agent: see The Attorney General v. M'Cabe 25 ; The People (Attorney
General) v. Murphy 26 ; The People (Attorney General) v. Galvin .27
3. In deciding whether or not a confession is a voluntary one, many elements have to be considered to
ascertain whether the accused was so oppressed that his free will had been sapped: see R. v. Prager .28 The Court
of Appeal there adopted the following definitions of the concept of"oppression" at p. 266 of the report:—
"The only reported judicial consideration of 'oppression' in the Judges' Rules of which we are aware is that of
Sachs J. in Reg. v.Priestley 29 where he said:— '. . . to my mind, this word, in the context of the principles
under consideration imports something which tends to sap, and has sapped, that free will which must exist
before a
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confession is voluntary . . . Whether or not there is oppression in an individual case depends upon
many elements. I am not going into all of them. They include such things as the length of time of
any individual period of questioning, the length of time intervening between periods of questioning,
whether the accused person had been given proper refreshment or not, and the characteristics of the
person who makes the statement. What may be oppressive as regards a child, an invalid or an old
man or somebody inexperienced in the ways of this world may turn out not to be oppressive when
one finds that the accused person is of a tough character and an experienced man of the world.' In an
address to the Bentham Club in 1968, Lord MacDermott described 'oppressive questioning' as
'questioning which by its nature, duration, or other attendant circumstances (including the fact of
custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject
that his will crumbles and he speaks when otherwise he would have stayed silent.'"
4. The accused's mental state at the time the confession was made may have been such as to render his
utterances completely unreliable. This principle was considered by the Court of Appeal in England in R. v.
Isequilla 30 where the judgment of the court considered the submission that a suspect's mental state may be such as
to have deprived him of the capacity to make a free choice and observed at p. 722 of the report:—
"This is a relatively novel submission, although it is supported by certain Commonwealth authorities and is
hinted at, if no more than that, in Cross on Evidence 3rd ed. (1967) pp. 450-451, where the author says: 'A
good deal of Commonwealth authority supports the view that a confession will be inadmissible if obtained at a
time when the accused's mind was so unbalanced as to render it wholly unsafe to act upon it. There is no clear
English authority on this point, but, if one of the reasons for excluding confessions is the danger that they may
be untrustworthy, it would be in accordance with principle to exclude a confession made by someone whose
mental state was such as to render his utterances completely unreliable. It is, however, difficult to formulate a
governing principle, and it is possible that, in England, the matter will be treated as one of judicial discretion.'
We would accept that summary of the position as it stands at the present time, and we would recognise that one
must
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not regard Professor Cross's phrase in which he describes the suspect as being in a condition where
his utterances are completely unreliable as being the sole and only test in these matters. It may be in
time other tests will be developed, but however one reads that and however one seeks to anticipate
further developments of this kind, we find it quite impossible to say on the evidence in this case that
the mental state of the defendant at the time of his confession which amounted to no more than the
fact he was sobbing and frightened and later became hysterical was within any sort of range of the
test Professor Cross had in mind."
5. If the confession has been obtained contrary to the Judges' Rules, the court of trial has a discretion to reject
it: see McCarrick v. Leavy 24 and The People (Attorney General) v. Cummins .22
6. A second confession, following a previous confession which has been held to be inadmissible, may be a
voluntary and admissible one, depending on its connection with the first (inadmissible) confession: The People
(Attorney General) v. Galvin 27 ; and R. v. Smith .31
I will now apply these principles to the issues before me . . .
The trial judge ruled that the statements and admissions made by the accused had been obtained as a result of a
violation of his constitutional right to be released or brought before a District Justice or a peace commissioner at the
first reasonable opportunity for the purpose of being charged. The judge held that, in normal circumstances, the
accused should have been brought before a District Justice at 10.30 a.m. on Monday, the 27th September, 1976.
However, the trial judge held that the violation of the accused's constitutional rights had not been a conscious and
deliberate one within the meaning of the principle proposed in The People (Attorney General) v. O'Brien 11 since
the motive of the Gardaà in continuing to detain the accused after 10.30 a.m. on the Monday, without bringing him
before a District Justice or a peace commissioner, was to discover the whereabouts of Mary ____ and to rescue her,
if she were still alive, rather than to deprive the accused of his constitutional rights. Accordingly, the trial judge
held that the statements and admissions made by the accused on Tuesday, the 28th September, were admissible in
evidence at his trial. The judge also held that, even assuming that there had been a conscious and deliberate
violation of the accused's
[1982] The People v. Shaw 13
1 I.R. McMahon J. C.C.A.
constitutional rights, the said statements and admissions were, nevertheless, admissible in evidence since there had
existed extraordinary excusatory circumstances so as to establish an exception which was recognised in the
principle proposed in the O'Brien Case .11
The accused was convicted on all three counts. The trial judge refused to grant the accused a certificate of
leave to appeal and he then applied to the Court of Criminal Appeal (O'Higgins C.J., Finlay P. and McMahon J.)
pursuant to s. 31 of the Courts of Justice Act, 1924, for leave to appeal against his convictions. The accused's
application was heard on the 30th April and the 1st-3rd May, 1979.
A. J. C. Mackey S.C. and P. J. Geraghty S.C. (with them N. Fennelly S.C. )for the applicant.
J. H. G. Lovatt-Dolan S.C. and E. F. Comyn S.C. (with them K. C.O'Higgins ) for the respondent.
Cur. adv. vult.
The judgment of the Court of Criminal Appeal was delivered by one of the members of the court in
accordance with s. 28 of the Courts of Justice Act, 1924.

22nd May 1979


McMahon J.

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
[1982] The People v. Shaw 14
1 I.R. McMahon J. C.C.A.
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
[1982] The People v. Shaw 15
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,
[1982] The People v. Shaw 16
1 I.R. McMahon J. C.C.A.
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

2 See pp. 5-12, ante.


[1982] The People v. Shaw 17
1 I.R. McMahon J. C.C.A.
get the applicant under control. The judge accepted the evidence of the two gardaà that no assault on the applicant
took place as was alleged in the course of the cross-examination of those witnesses, that the applicant suffered
injuries to his eyes and face but that those injuries were self-inflicted when the applicant had lost control of himself.
The learned trial judge based his decision that no assault took place on his assessment of the veracity of the
evidence of the two garda witnesses. The applicant did not give evidence on the issue of admissibility and,
therefore, there was no positive evidence before the trial judge that the injuries sustained by the applicant were
inflicted by the gardaÃ. This Court is satisfied that the trial judge was entitled (if not coerced) to come to the
conclusion which he reached that no assault was committed on the applicant.
The trial judge also accepted the evidence of the two garda witnesses who were present when the applicant
made the statement which was reduced to writing to the effect that the applicant was relaxed, calm, collected and
quiet and that he was no longer in the distressed condition in which he had been on the previous evening. He found
that a proper caution had been administered to the applicant, that no improper inducements were held out to him,
that no impropriety attached to the manner in which the admissions were obtained, and that he was a free agent at
the time he made the statements in the early hours of the Tuesday morning. There was no evidence given by the
applicant to controvert the evidence of the gardaà and, in the circumstances, Mr. Justice Costello was fully entitled
to make these findings.
The learned trial judge uses the convenient description "the Connemara admissions" to describe the statements
made by the applicant in his cell at the Galway garda station at about 12.45 p.m. on the Tuesday and the verbal
statements, which are admissions of guilt, which he made in the course of the journey through Connemara and his
actions in pointing out certain places to the gardaÃ. It was alleged at the trial and on this appeal that this evidence
should be rejected because the applicant did not go voluntarily on the journey, because no proper caution was given
to him, and because he was not a free agent when he left and during the journey in that his will was overborne by
the events since his arrest and the intimidating presence of the gardaÃ. Again the applicant did not give evidence in
support of these contentions. The learned trial judge accepted the evidence of the garda witnesses that shortly
before 7 a.m. on that morning the applicant, having made a confession freely and voluntarily, agreed to bring
members of the Gardaà around Connemara and to show them where he had put Mary's body and where he
[1982] The People v. Shaw 18
1 I.R. McMahon J. C.C.A.
had killed her, and that the applicant had said that he wanted to locate her body as her parents would wish to bury
her. The trial judge found that shortly after 12 noon Superintendent Reynolds saw the applicant in his cell, that the
applicant confirmed that he still wished to help to point out certain places to the gardaà and that some time later
Inspector Daly with two other gardaà went to the applicant's cell and properly and adequately cautioned him, and
that the applicant perfectly voluntarily agreed to go and do what he had said he would do. The trial judge stated that
he was left in no doubt by the evidence that the journey was undertaken voluntarily and that the admission, both
verbal and by action, were voluntary ones. These findings are amply supported by the evidence and the Court is
satisfied that the statements and admissions were shown, beyond reasonable doubt, to have been voluntary.
Legality of detention
The legality of the applicant's detention was challenged on a number of grounds. The first of these was based
on a claim that on the Sunday night the applicant had been denied access to a solicitor by Superintendent Colleran.
Mr. Justice Costello has found that the applicant asked to be provided with a solicitor and that Superintendent
Colleran said "I cannot get you one" and that no further mention was made by the applicant that he wished to see a
solicitor. The applicant did not ask for access to any named solicitor and Superintendent Colleran merely indicated
that he could not provide a solicitor for the applicant. Our system of legal aid does not entitle a person in custody to
free legal advice before he is charged, and the Court agrees with the conclusion drawn by Mr. Justice Costello that
the applicant was not denied access to a solicitor.
The trial judge then considered the legality of the applicant's detention from the Sunday night until 10.30 a.m.
on the Monday morning when there was a sitting of the District Court in Galway before which the applicant could
have been produced. The trial judge found that when the applicant was taken into custody at Salthill at about 11.30
p.m. on the Sunday evening he had not been told the reason for his arrest and that, by reason of that omission, his
arrest was not at that time a lawful one; but the trial judge found that it became lawful early on the Monday
morning at about 10 minutes after midnight because at that time Superintendent Colleran told the applicant that he
was being detained for being in possession of a stolen car and the Superintendent had reasonable grounds for
detaining the applicant. The
[1982] The People v. Shaw 19
1 I.R. McMahon J. C.C.A.
findings of fact on which this conclusion is based are supported by evidence and this Court agrees with the trial
judge's conclusion of law that the applicant's detention was then rendered valid.
Mr. Justice Costello also rejected a submission that the applicant should have been brought before a peace
commissioner or a District Justice at about midnight. The District Court did not sit in Galway before 10.30 a.m. on
the Monday morning and the learned judge held that the law did not require that the applicant should be brought
before a peace commissioner or a District Justice during the night. This Court agrees with that conclusion. The
authorities, such as Dunne v. Clinton 1 , go no further than to require that a person who is detained be brought
before a peace commissioner or a District Justice as soon as can reasonably be done. This time was 10.30 a.m. on
the Monday morning at the earliest.
It was contended on behalf of the applicant that when the statements were taken in Galway at 4.00 a.m. on the
Tuesday morning he had already been unlawfully detained for some considerable time, that that detention
constituted a deliberate and conscious violation of the applicant's constitutional right to liberty and that, on the basis
of the principles set out in the Supreme Court judgment in The People (Attorney General) v. O'Brien 11 and in the
judgment of the Court of Criminal Appeal in The People v. Madden 21 ,the statements ought not to have been
admitted in evidence. Mr. Justice Costello considered whether the unique circumstances of the case rendered the
detention of the applicant lawful notwithstanding the fact that he was not produced before the District Court in
Galway on the Monday morning and, in relation to that issue, the learned judge made certain findings of fact which,
in the view of this Court, are crucial to the issue. While the learned trial judge decided to base his judgment on the
assumption that the custody was illegal at the time when the statements were made, this Court invited counsel to
discuss whether the necessity of protecting the constitutional right to life of Mary ____ prevented the detention
from being unlawful.
In the view of this Court, the learned trial judge's findings of fact are completely justified on the evidence and,
because of their importance, it is desirable that they should be set out in full. He said:— "I have already explained
why in my opinion the custody of the accused up to the sitting of the District Court at 10.30 a.m. was lawful
custody. I have been informed by Superintendent Reynolds why he was not charged then or at any time up to the
completion of the statements. I accept his evidence and I find as a fact that the accused was not charged for the
reasons he gave. Superintendent
[1982] The People v. Shaw 20
1 I.R. McMahon J. C.C.A.
Reynolds was quite satisfied from the painstaking inquiries which had been carried out after the disappearance of
Elizabeth ____ that Shaw and Evans were involved in her disappearance, and he was satisfied that because of the
similarity of the two incidents the two suspects might have been able to assist in establishing the whereabouts of
Mary ____. He felt that, whatever about Elizabeth ____, there was a possibility that Mary ____ might still be alive;
that the safety of the girls was more important than preferring charges against the two suspects; he felt that he was
in duty bound to try to elicit information about Mary ____. He did not intend to keep them indefinitely in custody,
but until such time as he was satisfied that he could not obtain assistance relating to the girls or alternatively had
received it. The paramount and primary concern of the superintendent and his colleagues from early on Monday
morning was not to formulate charges against the suspects but the welfare of the girls, particularly Mary ____. This
was the position throughout Monday. By Monday evening he had obtained a statement from Evans which clearly
showed the involvement of the two suspects in Elizabeth's abduction. It became all the more urgent to try to get
information about Mary ____ as she might still have been alive. If during that Monday an application for habeas
corpus had been made on Shaw's behalf on the basis that his continued detention was illegal, I think it is quite
possible that if the court was apprised of all the facts which have been given in evidence before me that it would
have concluded that the detention of the accused in the quite extraordinary circumstances was not illegal."
The applicant had been deprived of his personal liberty in accordance with law when he was detained on
suspicion of a felony. The question which this Court has to consider is whether it was the duty of Superintendent
Reynolds and his colleagues to bring the applicant before the District Court at 10.30 a.m. on the Monday morning,
regardless of the effect that doing so might have on the prospect of saving the life of Mary ____. Article 40, s. 3,
sub-s. 2, of the Constitution provides:—
"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."
The Gardaà had evidence which made it probable that Mary ____ had been forcibly abducted and the duty of
the State to protect her life rested upon the shoulders of Superintendent Reynolds and his colleagues. But did the
law permit them to discharge that duty without violating the applicant's constitutional right to liberty? If the law so
permitted, it could only do so by
[1982] The People v. Shaw 21
1 I.R. McMahon J. C.C.A.
rendering lawful the continued detention of the applicant. If he had been brought before a District Justice and
remanded in custody to a prison, any chance of obtaining from him information which might have saved the life of
Mary ____ (if she were still alive) would have been lost irretrievably. In that respect this case is different from
cases where a life is not in peril because, in the latter, the loss may not be irretrievable.
The decision in Dunne v. Clinton 1 can not be regarded as authority for the proposition that, in the unique
circumstances of this case, the failure to bring the applicant before the District Justice on the Monday morning
necessarily rendered his continued detention unlawful. The issue in Dunne v. Clinton 1 was whether the GardaÃ
were entitled to detain those suspected of crime while investigating the crime, or whether they had a duty to bring a
suspect before the District Court or a peace commissioner with reasonable promptitude. It is clear from the
judgments in the Supreme Court (unreported) that the duty to bring a suspect before the District Court or a peace
commissioner is stated only in relation to the claim by the defence that the Gardaà were entitled to detain a suspect
while they investigated the crime for the purpose of obtaining evidence against him. Therefore, the case is not an
authority for the proposition that in no circumstances can a detention be lawful after an opportunity has arisen for
bringing the person in question before a District Justice. If there was any doubt in the present case about the real
purpose for which the applicant was detained, and if the purpose was possibly to get an incriminating statement in
relation to either Elizabeth ____ or Mary ____, the trial judge should have excluded the evidence. Mr. Justice
Costello has found that the paramount and primary purpose of Superintendent Reynolds in continuing the
applicant's detention was the welfare of the girls; in particular, the welfare of Mary ____. In these unique
circumstances this Court is satisfied that, in continuing the applicant's detention, the Gardaà were not acting
unlawfully but were justified by the necessity of protecting the constitutional right to life of Mary ____.
The situation in relation to the applicant's custody on the Tuesday differed from that on the previous day
because he had made a full confession (which concluded at 7.00 a.m.) in which he stated that he had killed Mary
____. He was not charged with any offence that morning and, instead, he was brought on the journey through
Connemara which lasted until nearly 7 o'clock in the evening. The learned trial judge accepted Superintendent
Reynolds's explanation of the failure to charge the applicant, i.e., that the superintendent believed that there was still
a chance, notwithstanding the
[1982] The People v. Shaw 22
1 I.R. McMahon J. C.C.A.
admission of murder, that Mary ____ might be alive and that he should make every effort to check the applicant's
story. If it should turn out to be true, then it would be certain that she was dead. If the story were not borne out, then
there would be a chance that her life might be saved. In the view of this Court it was the duty of Superintendent
Reynolds to pursue even a remote chance that Mary ____ might be alive. For all the superintendent knew, he was
dealing with a man of abnormal mentality who had confessed to one murder which he probably had committed and
who might in those circumstances confess to a further murder which he had not committed. The learned trial judge
was entitled to accept as true the explanation given by Superintendent Reynolds as to why the applicant was not
charged before the journey round Connemara took place. In the view of this Court, the chance that Mary ____
might still have been alive, though remote, was still sufficient to render lawful the applicant's continued detention.
The trial judge based his judgment on this issue on the basis that the prosecution had not established beyond a
reasonable doubt that the custody during the journey through Connemara was lawful. He found that the purpose and
object of the applicant's continued detention was not to deprive him of his liberty but to have him do certain things
which would help to establish the truth of the confession. Mr. Justice Costello said:— "It is true that this would
also in all probability produce corroborative evidence which could be used in a subsequent prosecution. But it is
also true that the possibility existed, albeit a somewhat remote one, that Mary ____ was still alive and that in
undertaking the journey her life might be saved. In these circumstances and bearing in mind that the accused was
co-operating and voluntarily going on the journey it cannot be said that the Gardaà were consciously and
deliberately violating his rights in acting as they did instead of bringing the accused before a District Justice and
charging him with murder."
The proper conclusion of law from the facts found by the learned trial judge is not that the violation of the
applicant's constitutional right was not deliberate or conscious but that there was no violation in fact.
Whether violation of constitutional right excused.
On the assumption that the continued detention of the applicant during the Monday and the Tuesday (including
his journey around Connemara) had been a deliberate and conscious violation of his constitutional right, the trial
[1982] The People v. Shaw 23
1 I.R. McMahon J. C.C.A.
judge nevertheless held that there were "extraordinary excusing circumstances" (see O'Brien's Case 11 ) in
consequence of which the evidence thereby obtained ought not to be excluded. The findings of fact upon which the
learned trial judge based that conclusion appear sufficiently in the above extracts from his judgment. This Court is
completely satisfied that the conclusion is warranted by the findings. The principle of O'Brien's Case 11 is that,
even where a violation of a constitutional right is deliberate and conscious, there may be circumstances which affect
the gravity of the violation so that evidence thereby obtained is not necessarily excluded. The primary concern of
Superintendent Reynolds and his colleagues from early on the Monday morning was not the formulation of charges
against the applicant but the welfare of the girls — in particular the welfare of Mary ____. That position continued
throughout the Monday. By Monday evening Inspector Reynolds had obtained from Evans a statement which
showed clearly the involvement of the applicant and Evans in Elizabeth's abduction; it also showed that Elizabeth
____ had been kept alive for some appreciable time after she was abducted. Therefore, it became all the more
urgent to try to get information about Mary ____ as she might still have been alive. After the applicant had made
his statement on the Tuesday morning, there was only a remote chance that Mary ____ was still alive — but it was
a chance which the Gardaà were bound to pursue. As Mr. Justice Costello pointed out in his judgment, the
Gardaà did not pursue that chance at the cost of extending the period of detention of the applicant, because there
was no immediate prospect that he would be set at liberty. This Court is satisfied that, if it needs to be excused, the
interference with the applicant's right to liberty is amply excused by the circumstance that the paramount and
primary purpose for continuing his detention was the hope of saving the life of Mary ____ from imminent peril.
Limits of admissible evidence.
It was submitted on behalf of the applicant that, where a detention which is otherwise unlawful is excused by
the purpose for which it takes place, the evidence thereby rendered admissible is confined to what was called "target
evidence" — that is to say, evidence which is within the ambit of the excusatory purpose. The purpose of detaining
the applicant it was said, was to ascertain the whereabouts of Mary ____ and so the admissible evidence should be
confined to that matter and evidence of admissions by the applicant
[1982] The People v. Shaw 24
1 I.R. McMahon J. S.C.
as to what was done to Mary ____ ought to be excluded. This restriction of the admissible evidence appears to
follow logically from the facts which rendered it admissible and evidence which is extraneous to the purpose ought
to be inadmissible. While the wider concern of the Gardaà was to find if Mary ____ was still alive and, in any
event, what had happened to her, their concern with the applicant and the purpose for which he was detained was to
ascertain if he was connected with the disappearance of Mary ____ and, in that event, to find what information he
could give about her fate. The evidence of his statements on these topics is therefore admissible.
Therefore, the Court refuses this application for leave to appeal against the convictions of the applicant.

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.

17th December 1980


Walsh J.

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

3 See p. 24, ante.


[1982] The People v. Shaw 28
1 I.R. Walsh J. S.C.
violation of the constitutional rights of the accused were not rendered admissible by any circumstances, excusatory
or otherwise, established by the evidence.
4. That the learned trial judge misdirected himself in law in submitting for the consideration of the jury, in
response to a request made by the foreman, a typewritten document purporting to contain a record of the
evidence given by a garda witness as to what had been stated to such garda witness by the accused, which said
typewritten document had not been proved in evidence."
Having heard a preliminary objection made by counsel for the Director of Public Prosecutions to the effect that
this Court should hear submissions relating only to the point specified in the certificate granted by the Court of
Criminal Appeal, the Court decided to hear submissions on all of the grounds in the notice of appeal which were, in
fact, all of the grounds upon which the application for leave to appeal to the Court of Criminal Appeal was based.
Basically, the appeal is concerned with the admissibility of certain statements made by the appellant, and it is
taken on the grounds that there was no, or no sufficient, evidence adduced by the prosecution at the trial to establish
the voluntary nature of those statements. The second point is that, even if the statements were voluntary, the
circumstances surrounding the taking of the statements and the methods used in taking them constituted a deliberate
and conscious violation of the constitutional rights of the appellant and, therefore, were totally inadmissible on that
account. The appeal is concerned also with examining the legality of the arrest of the appellant and the keeping of
him under arrest during various periods from his original apprehension by the garda authorities to his first
appearance in court.
I think it would be best, and more convenient, at this stage to set out the legal principles which govern the
points raised in this appeal; they are as follows.
1. In addition to statutory provisions which make certain offences arrestable without a warrant, a member of
the Garda SÃochána is entitled, and is bound, to arrest any person in respect of whom he has reasonable grounds
for believing that he has committed a felony, and to bring him before a court charged with that offence or to release
him: Creagh v. Gamble 41 ; The People v.Walsh .10
2. No person may be arrested (with or without a warrant) save for the purpose of bringing that person before a
court at the earliest reasonable
[1982] The People v. Shaw 29
1 I.R. Walsh J. S.C.
opportunity. Arrest is simply a process of ensuring the attendance at court of the person so arrested. The exception
to this rule which appears in the Offences Against the State Act, 1939, has no relevance to the present case: Dunne
v. Clinton 1 (and the unreported judgments of the Supreme Court in that case); The Attorney General v. Cox 42 ;
The People v. O'Loughlin 9 ; The People v.Walsh 10 ; The Attorney General (McDonnell) v. Higgins .43 In
addition, the Criminal Justice Act, 1951 (s. 15) provides that 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.
If not, he shall be brought as soon as may be before a peace commissioner in the district of such Justice.
3. To effect a lawful arrest, the person arrested must be told by the person effecting the arrest the charge upon
which he is being arrested, unless he otherwise knows the reason for the arrest: In re Ó Laighléis 3 ; The
People v.Walsh .10
4. No person may be arrested (with or without a warrant) for the purpose of interrogation or the securing of
evidence from that person. If there exists a practice of arresting persons for the purpose of "assisting the police in
their inquiries," it is unlawful. In such circumstances the phrase is no more than a euphemism for false
imprisonment: Dunne v. Clinton 1 ; The People v.O'Loughlin 9 ; The People v. Walsh .10 In The People v. Walsh
10 the learned Chief Justice, in the course of his judgment, said at p. 299 of the report:—

"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

4 See p. 24, ante.


[1982] The People v. Shaw 41
1 I.R. Walsh J. S.C.
and does not purport to render lawful an act which is unlawful and that no court is competent or permitted to do so.
To suggest that an effort in vindicating the life of another person, e.g., to enable that person to gain the benefit of
the constitutional provision for the protection or vindication of his life, is sufficient in itself to render lawful any act
however unlawful, provided it is motivated by an honest desire to save or vindicate a life, is simply to state that the
end may justify the means, unlawful though they may be. The specific question raised in the certificate of the Court
of Criminal Appeal, namely, whether the arrest and imprisonment of the appellant after 10.30 a.m. on Monday, the
27th September, 1976, was lawful by reason of the obligation of the Gardaà to attempt to vindicate the right to life
appears to me to beg the question. The Constitution, by reason of its express provision that no person shall be
deprived of his personal liberty save in accordance with law, means what it says. It entrenches the law and raises it
to the level of a constitutionally guaranteed right. To take the example which was considered by the trial judge, if
an application for the release of the appellant at the time in question had been made to the High Court under Article
40 of the Constitution and the only justification which could be offered by the custodians, namely, the Garda SÃ-
ochána, was their belief, albeit a reasonable one, that holding the appellant under continued arrest might lead to
the saving of the life of Mary, the High Court would have had no alternative but to order the release of the appellant
forthwith on the grounds that he was not being detained in accordance with the law. The custodians would not have
been able to point to any law which justified the appellant's continued detention. If it were sought simply to justify
it by showing a good motive, such as an effort or a hope to save a life in so doing, the court would have had to hold,
in accordance with Article 40, s. 4, sub-s. 2, of the Constitution, that such detention, however well intentioned, was
not in accordance with the law — whether it be the law stated in the Constitution or the law in force by virtue of
statute or common law. To do otherwise would be to disobey the mandatory express injunction of Article 40.
Therefore, I am of opinion that the statements would not have been admissible because such arrest and
imprisonment were contrary to law and, therefore, amounted to a breach of the constitutional rights of the appellant.
For the reasons I have already given, the answer to that question does not govern this case.
So far as paragraph 1 of the grounds of appeal is concerned, the answer must be that the provisions of the
Constitution did not permit the Garda SÃochána to deprive the appellant of his personal liberty for the period in
[1982] The People v. Shaw 42
1 I.R. Walsh J. S.C.
question in the belief that such deprivation might vindicate the constitutional right or rights of another citizen. For
the reasons already given, that arrest and imprisonment were unlawful. But, for the reasons already given, in the
circumstances of this case such unlawful arrest did not render inadmissible the incriminating evidence furnished by
the appellant during the period of the unlawful arrest. The circumstances prevailing at the time the appellant made
his Galway confession were capable of amounting in law to extraordinary excusatory circumstances. For the
reasons I have given I would dismiss this appeal.
With regard to the question of whether or not this Court had jurisdiction to hear any matter in this appeal save
the matter specified in the certificate, I simply wish to state that in my opinion it had that jurisdiction. The grounds
of my belief have already been set out at considerable length in my judgment in the decision of this Court in The
People (Attorney General) v. Giles 37 and I do not propose to repeat them.
The Court's jurisdiction in an appeal brought on foot of a certificate under s. 29 of the Courts of Justice Act,
1924, is entirely statutory. For over fifty years this statutory jurisdiction has been exercised on a particular
interpretation of the statutory provision in question. It was originally evolved in the former Supreme Court of
Justice and continued in this Court. I see no reason to depart from that view. However, I do not consider to be well
founded the submission made on behalf of the Director of Public Prosecutions in the present case to the effect that,
if the statute does not give any such power to the Court, the Court nevertheless has a discretion to hear other points
on the appeal in addition to that set out in the certificate. If the correct construction of the statute were that the Court
was confined to the points certified, then there is nowhere one could find any power on the part of the Court to
extend the statutory jurisdiction so conferred. Where any appellate jurisdiction is conferred on this Court in respect
of decisions of any other court, the appellate jurisdiction is restricted only to the extent that such restriction is
clearly expressed in the constitutional or statutory provisions conferring jurisdiction, and the Court should exercise
that jurisdiction accordingly.
In conclusion I wish to say a few words concerning the decision of this Court in The People (Attorney
General) v. Conmey .32 It had not originally been my intention to mention that case at all as it was never mentioned
in the course of this hearing nor, indeed, has it any relevance whatever to it. However, as it appears that one or more
members of the Court wish to avail
[1982] The People v. Shaw 43
1 I.R. Walsh J. S.C.
of this occasion to express a view on it, I feel I cannot let the matter pass without comment.
The decision of the Court in that case was to the effect that an appeal lay directly from a decision of the
Central Criminal Court (which is the High Court exercising its criminal jurisdiction) to this Court by virtue of the
provisions of Article 34 of the Constitution. In that case the applicant applied to this Court for an extension of time
to lodge a notice of appeal to the Court and, for the purpose of deciding that matter, it was necessary to consider
whether or not an appeal did lie to this Court from the Central Criminal Court. The applicant had already brought an
appeal to the Court of Criminal Appeal pursuant to s. 31 of the Courts of Justice Act, 1924. That appeal had been
dismissed and he had been refused a certificate pursuant to s. 29 of the Act of 1924 to enable him to appeal to this
Court. A majority of the members of the Court expressed the view that an appeal did lie to this Court from the
Central Criminal Court and that it had not been restricted or regulated by any legislation enacted since the coming
into force of the Constitution. The Court also held that the Court of Criminal Appeal, being a statutory appellate
court of limited jurisdiction, enjoyed a concurrent jurisdiction with this Court within a limited area and that, when
its jurisdiction within that area had been invoked, the matter under appeal was then completely exhausted and no
further appeal could be taken to this Court, save by virtue of the provisions of s. 29 of the Act of 1924. If, however,
the concurrent jurisdiction of the Court of Criminal Appeal had not been invoked, then the matter would not have
been exhausted and an appeal would lie directly to this Court. Therefore, the Court, being of opinion that there was
nothing left to determine as the applicant's appeal had been fully disposed of and that there was no basis for
enlarging the time, decided that the application for enlargement of time should be dismissed. Two members of the
Court, while not expressly dissenting from the views of the majority, expressly reserved their opinion on the general
question of a direct appeal from the Central Criminal Court to this Court. They expressed the view that the
applicant, having taken the course of appealing to the Court of Criminal Appeal, had exhausted thestatutory
remedies available to him and that, if an appeal did lie to this Court, such an appeal would be an alternative and not
an addition to the statutory right of appeal to the Court of Criminal Appeal. They took the view that, having
exercised that statutory right, it was not open to the applicant to claim to exercise in addition thereto a constitutional
right of direct appeal to this Court.
[1982] The People v. Shaw 44
1 I.R. Walsh J.; Griffin J. S.C.

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."

Griffin J. (with whose judgment Henchy J. agreed)


The greater portion of the trial of the appellant was occupied by evidence and legal submissions in relation to
the circumstances in which he made statements while he was in custody in the garda station in Galway on Tuesday,
the 28th September, 1976, and when he made a journey through Connemara on the afternoon of the same day. The
main thrust of the arguments made on his behalf at the trial was directed at establishing (a) that the statement in
writing made by him between 4.10 a.m. and 6.50 a.m. on that day and the oral statements subsequently made were
not admissible in evidence, and (b) that the statements made by him during the journey through Connemara and the
evidence discovered at the places pointed out by him to the gardaà were equally not admissible in evidence.
The grounds on which it was alleged that the statements were not admissible were, first, that they were not
voluntary statements, it being alleged that the appellant was assaulted by members of the Gardaà and that the
questioning of the appellant was oppressive and was such as was designed to, and did, break down his resistance
and sap his will; secondly, that, when the statements were made and the journey through Connemara was
undertaken, he was in unlawful detention and that there were no excusatory circumstances which would permit the
admission of the statements within the
[1982] The People v. Shaw 45
1 I.R. Griffin J. S.C.
principles enunciated in The People (Attorney General) v. O'Brien .11
The trial judge, Mr. Justice Costello, held a full inquiry — a trial within the trial — into all the events that
occurred subsequent to the arrest of the appellant. He did so for the purpose of considering and ruling upon the
admissibility of the statements made and of the evidence in relation to what occurred during the journey through
Connemara. Having done so, he delivered a written judgment in which he held that the statements were voluntary
ones and that they were admissible. In the course of his judgment he did not find it necessary to decide whether the
detention of the appellant was illegal when the statements were made, as he based his judgment on the assumption
that the State had not satisfied him beyond a reasonable doubt that the detention was lawful. On that assumption he
found that, while the act of detaining the appellant amounted to an illegal act and a breach of his constitutional
rights, the violation of those rights was not a conscious and deliberate one in the circumstances; but that, even if it
was, in the exercise of his discretion he would admit the statements by reason of the extraordinary excusatory
circumstances in the case.
Although the trial judge did not find it necessary to decide whether the detention of the appellant was illegal, I
infer from his judgment that, had it been necessary to do so, the judge would have held that the detention was not
illegal.
Having been convicted of the murder, rape, and false imprisonment of Mary ____, the appellant applied to the
Court of Criminal Appeal for leave to appeal, but that application was refused. However, during the hearing of the
application that court invited counsel to discuss whether the necessity of protecting the right to life of Mary
pursuant to Article 40, s. 3, sub-s. 2, of the Constitution prevented the detention of the appellant from being
unlawful. This question having been argued, the Court of Criminal Appeal held that, in continuing the detention of
the appellant, the Gardaà were not acting unlawfully but were justified by the necessity of protecting the
constitutional right to life of Mary, and that the proper conclusion of law from the facts found by the trial judge was
not that the violation of the constitutional rights of the appellant was not deliberate or conscious but that there was
no violation in fact. Although dismissing the application, the Court of Criminal Appeal granted a certificate of leave
to appeal to this Court. The certified point of law of exceptional public importance was:—
". . . Whether the continued detention of the accused John Shaw after 10.30 a.m. on Monday, the 27th
September, 1976, being
[1982] The People v. Shaw 46
1 I.R. Griffin J. S.C.
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 . . ."
The grounds of appeal of the appellant in the notice of appeal to this Court have been set out in the judgment
of Mr. Justice Walsh, and it is not necessary to repeat them. With the exception of those arising in consequence of
the certificate given by the Court of Criminal Appeal, they were the same as those grounding the appellant's
application for leave to appeal to the Court of Criminal Appeal.
Submissions in writing were made on behalf of the respondent Director of Public Prosecutions and on behalf
of the appellant. A preliminary submission was made on behalf of the respondent that the appeal should be limited
to a consideration of the matters appearing in the certificate of the Court of Criminal Appeal, and that the appellant
should not be permitted to argue any other grounds of appeal. With the exception of that submission and the
submissions in relation to the certified point of law of public importance, the arguments advanced in this Court
were similar to those made at the trial and in the Court of Criminal Appeal.
The questions which arose for consideration at the hearing of the appeal to this Court were:—
1. Whether the appeal should be limited to a consideration of the point of law set out in the certificate of the
Court of Criminal Appeal.
2. Whether the statements made by the appellant were voluntary.
3. The point of law set out in the certificate.
4. Whether, if the detention of the appellant was unlawful when the statements were made by him, there were
excusatory circumstances which would permit their admission notwithstanding any deliberate and
conscious infringement of the constitutional rights of the appellant which might have taken place.
The scope of the appeal
The jurisdiction of the Court of Criminal Appeal to grant a certificate of leave to appeal to this court is
conferred by s. 29 of the Courts of Justice Act,
[1982] The People v. Shaw 47
1 I.R. Griffin J. S.C.
1924, as applied by s. 48 of the Courts (Supplemental Provisions) Act, 1961. A certificate under that section is the
only statutory means whereby a person convicted on indictment may appeal to this Court. In The People (Attorney
General) v. Conmey 32 there are to be found dicta to the effect that a person who is convicted on indictment in the
Central Criminal Court can appeal directly to this Court, but (as I said in my judgment in that case) I consider those
dicta to have been obiter. Because the attention of the Court in that case was not directed to the application to the
suggested appellate jurisdiction of certain constitutional provisions (for example — Article 40, s. 1) and of other
authorities, the opinion expressed in those dicta may be thought to have been reached per incuriam or sub silentio.
Therefore, I consider it to be an open question whether an appeal lies to this Court from any conviction on
indictment save by means of s. 29 of the Act of 1924. However, this dictum itself is obiter, because the point was
not argued in this case. I must reserve for an appropriate case, in which the Director of Public Prosecutions will be
legitimus contradictor, my considered opinion on this point.
Under s. 29 of the Act of 1924 no appeal lies from the Court of Criminal Appeal to this Court unless that
court, or the Attorney General, certifies that the decision of that court involves a point of law of exceptional public
importance and that it is desirable in the public interests that an appeal should be taken to this Court, in which case
an appeal may be brought to this Court. Similar provisions were to be found in s. 1, sub-s. 6, of the Criminal Appeal
Act, 1907 (save that the certificate could be given only by the Attorney General), but that Act did not extend to
Ireland.
The question raised by the respondent was considered by this Court in The People (Attorney General) v.
Giles .37 In that case, FitzGerald C.J. had reservations about the submission that an appellant is entitled to argue
matters which are outside the terms of the certificate, and did not express any opinion on that question. However,
Mr. Justice Walsh and Mr. Justice Henchy did deal with the question. Mr. Justice Walsh, in his judgment, pointed
out that it has always been the practice when an appeal is brought to this Court under s. 29 of the Act of 1924 to
serve a notice of appeal and to set out the grounds of appeal, and that they were not confined to the point mentioned
in the certificate; furthermore, that it has always been accepted as a correct view of the law that an appeal to this
Court was not confined to the point raised in the certificate and that this Court has the same powers as the Court of
Criminal Appeal in a like case. In his opinion, an appeal taken to this Court was an appeal against the decision of
the Court of Criminal Appeal
[1982] The People v. Shaw 48
1 I.R. Griffin J. S.C.
and that, although the granting of the certificate gives the right of appeal, the certificate does not limit the scope of
the appeal. Mr. Justice Henchy, in his judgment, stated that, while there was previously no specific decision on the
point, this Court seemed to have taken the same view as the House of Lords took (under the corresponding statutory
provisions in England) of the extent of the jurisdiction on hearing an appeal from the Court of Criminal Appeal, that
is to say, that the Court is not confined to the point of law certified and may exercise all the powers which the Court
of Criminal Appeal could exercise in such a case.
Therefore, the position is that since 1907 in England and since 1924 in this country it has at all times been
accepted that the correct interpretation of the relevant statutory provisions is that the appeal is not limited to the
point of law raised in the certificate. Accordingly, the preliminary submission made on behalf of the respondent is
not sustainable.
Voluntariness of the statements
It is for the trial judge to decide, when he has heard all the evidence on the question, whether a statement made
by an accused person is admissible. If he is satisfied that it was not voluntary, his decision can only be to exclude it;
he has no discretion to admit such a statement:— see per Walsh J. in McCarrick v. Leavy 24 ; The People
(Attorney General) v. Cummins .22
The events that took place during the questioning of the appellant at the garda station in Galway were fully
investigated in the absence of the jury. This questioning took place in the billiard room in what might conveniently
be called five sessions.
The first session took place between 11.30 a.m. and 3.30 p.m. on the 27th September, 1976. During this
session the appellant refused to talk or answer any questions.
The second session took place between 3.30 p.m. and 8.30 p.m. on the same day. During this session the
appellant talked about general matters unconnected with those which the Gardaà were investigating at that time.
Some time after 5.00 p.m. the appellant was told that the Gardaà were investigating the disappearance of Elizabeth
____ in Brittas Bay on the 28th August. He admitted being in Brittas Bay with Geoffrey Evans at the end of
August, but denied knowing her or having anything to do with her disappearance.
It was conceded by counsel for the appellant that nothing untoward
[1982] The People v. Shaw 49
1 I.R. Griffin J. S.C.
occurred and that there was not any aggressive or oppressive questioning at either of the first two sessions.
The third session took place between 8.30 p.m. and 10.30 p.m. on the same day. During this session, according
to the evidence, the appellant lost control of himself, became violent, broke the glass in a cabinet with a chair, and
had to be forcibly restrained by gardaÃ. It was put to the gardaà in cross-examination that the appellant was
assaulted by them and suffered injuries, but the trial judge was satisfied that no such assault took place and that
such injuries as the appellant suffered were self inflicted when he lost control of himself. During this session very
little questioning took place because of the appellant's distressed condition, but the trial judge held that this
condition was not in any way associated with the manner in which the interview was conducted.
The fourth session took place between 10.30 p.m. and 11.15 p.m. By this time, a statement had been made by
Evans in relation to the disappearance, raping, and killing of Elizabeth ____, and of the appellant's involvement in
those crimes. Therefore, the appellant was cautioned when the two gardaà entered the room in which he was.
However, as they considered that he was too distressed to talk to them, at 11.15 p.m. they took him back to his cell
where he went to sleep; he remained asleep until 4 a.m. next morning.
The fifth session took place between 4.10 a.m. and 6.50 a.m. on the 28th September, 1976. The appellant was
awakened at 4.00 a.m. and brought back to the billiard room. At that time, as found by the trial judge, he was
relaxed, calm, collected and quiet; he was no longer in the distressed condition in which he had been the previous
evening. He was cautioned and talked quite freely. He cried for a few moments and said he wanted to tell
everything. He made a statement in which he confessed to abducting, raping and killing Mary ____. This statement
was completed at 6.50 a.m. and he signed it by a mark, alleging that he was unable to write.
Subsequent to the completion of this written statement made in the morning of the 28th September, he made
oral statements in which he said that he wanted to do everything he could to help the Gardaà to recover the body
and that, to help them, he wanted to go to the lake where the body had been disposed of and to point out where he
and Evans had put the body; and he asked that she should have a Christian burial.
Later that morning, at approximately 12 noon, the appellant was seen by Detective Superintendent Reynolds,
who was in charge of the investigations, and the appellant confirmed to the superintendent that he wished to find
the
[1982] The People v. Shaw 50
1 I.R. Griffin J. S.C.
body and point out certain places in Connemara. At approximately 12.40 p.m. the appellant was seen by Inspector
Daly who said to him he understood that the appellant wished to point out certain places and things, that he did not
have to do it but that, if he did, it could be used in evidence later. The appellant was asked if he understood the
caution, and he nodded agreement; a few minutes later he set out with the gardaà on a journey into Connemara.
Throughout this journey, the appellant directed the garda driving the car where to go, and each place to which the
party went was one directed by the appellant. He pointed out (inter alia) where he and Evans disposed of the body
in Lough Inagh, the place in Ballinahinch in a wood in which their tent had been pitched, and in which they had
held "the girl from Castlebar," the place near the tent where he had killed her, the cushion (hidden in some
undergrowth nearby) which he had used to kill her by putting it over her mouth, and the place where he had left the
rings which he had removed from the girl's body before disposing of it. These rings were subsequently found and
were identified later as having belonged to Mary ____.
All the members of the Gardaà who had been in any way involved in, or present at, the arrest, detention, or
questioning of the appellant, or who were on the Connemara journey, gave evidence. The appellant did not give
evidence. Having heard all the evidence, extending over several days, the trial judge found that the statements made
by the appellant — the written statement and those subsequently made orally — were not made as a result of any
aggressive or oppressive questioning, that the appellant was not assaulted by any of the gardaÃ, that no improper
inducements were held out to him, and that no impropriety attached to the manner in which any of the statements
were obtained. Accordingly, the trial judge held that the statements were voluntary and admissible in evidence. In
my opinion, the trial judge was fully justified, on the evidence, in reaching the conclusion that the written and
verbal statements made by the appellant at the garda station in Galway on the morning of and shortly after noon on
the 28th September, 1976, were voluntary.
In relation to the journey through Connemara, it was submitted in this Court, as at the trial and in the Court of
Criminal Appeal, that the verbal statements made by the appellant and the facts established as a result of the various
places pointed out by him, and which connected him with the crimes, should not have been admitted in evidence
because he did not go voluntarily on that journey, because he was not properly cautioned, and because he was
[1982] The People v. Shaw 51
1 I.R. Griffin J. S.C.
not a free agent during that journey as his will had been sapped by the events of the preceding 24 hours. The trial
judge held that at approximately 7.00 a.m. on the 28th September, after the appellant made the statement in writing,
the appellant freely and voluntarily offered to bring members of the Gardaà around Connemara to show them
where he had put Mary's body, and that he wanted to locate the bodies of both girls (i.e. Mary ____ and Elizabeth
____) as their parents would want to bury them. The trial judge held that the appellant was properly cautioned by
Inspector Daly, that the appellant's will was not in any way overborne, and that he was a free agent in agreeing to
go on the journey. The trial judge said that he was left in no doubt by the evidence that the journey was undertaken
voluntarily and that the appellant's admissions, both verbal and by action, were voluntary.
In my judgment, not only was there evidence to support these findings of the learned trial judge, but it is
difficult to see how, on the evidence, he could reasonably have reached any other conclusion.
The certified question of law
The appellant was arrested at Salthill in Galway at 11.30 p.m. on Sunday, the 26th September, 1976, when he
was in the passenger seat of a car which, as the Gardaà knew, had been stolen. Evans was in the driver's seat. The
appellant was told he was being taken to the garda station for questioning. He gave his name as David Ball, and
Evans gave his name as Roy Hall. Both were taken to Salthill garda station. Shortly afterwards, at ten minutes after
midnight, the appellant was told by Superintendent Colleran that he was being detained for being in possession of a
stolen car, and he was removed to Galway garda station. At approximately 00.35 a.m. the appellant was put in a cell
for the night. He was not formally charged. When arrested, the appellant had not been told of the reason for the
arrest, which was made without a warrant, so the original detention was unlawful. However, when the appellant was
later told by Superintendent Colleran of the reason for his detention, the invalidity of the arrest did not render the
subsequent detention unlawful: see per Maguire C.J. in In re Ó Laighléis 3 at p. 129 of the report. Under s. 13,
sub-s. 1, of the Criminal Justice Act, 1951, a member of the Garda SÃochána is empowered to arrest without
warrant a person whom he reasonably suspects of having or conveying in any manner anything stolen or unlawfully
obtained, so that any invalidity in the original arrest was validated when the appellant was told at 00.10 a.m. the
reason why he was being
[1982] The People v. Shaw 52
1 I.R. Griffin J. S.C.
detained.
At common law the appellant should have been brought before a court within a reasonable time. The District
Justice for the area of the Galway District Court lives in Galway, and he sat in court at 10.30 a.m. on the morning of
Monday, the 27th September, 1976. Therefore, in the ordinary course, the appellant should have been brought
before the District Court on that morning. The appellant was in lawful custody until the District Court sat. In my
view, it was not unreasonable for the Gardaà to refrain from bringing the appellant to a peace commissioner or the
District Justice before the sitting of the District Court.
However, the appellant was not brought to the District Court that morning but was detained in Galway garda
station and questioned during that day and the following morning, as already stated. Prima facie, therefore, the
appellant's detention was unlawful after the District Court sat, or shortly thereafter. The appellant was not brought
before the District Court because he was suspected of having been involved in the disappearance of Elizabeth ____
in Brittas Bay at the end of August, and in the disappearance of Mary ____ in Castlebar a few days previously.
Widespread investigations and painstaking inquiries had been carried out into the disappearance of Elizabeth.
These had established that Evans and the appellant were in Brittas Bay at the time of her disappearance; that they
had subsequently stayed in Fethard in the county of Tipperary and had applied for driving licences at Clonmel in
the names of Roy Hall and David Ball (which were the names they used in Galway when arrested); that several
caravans had been broken into in Brittas Bay during the week-end of Elizabeth's disappearance, and that the stolen
property was found in the house in Fethard in which they had stayed; and that they were likely to be travelling in a
stolen black Ford Cortina motor car, registered number SZH 562 (being the car in which they were ultimately found
in Salthill). In addition, some hours before Mary disappeared, this car was filled with petrol at a filling station at
Maam in the county of Galway and was driven away towards Castlebar. The car into which Mary was seen being
forcibly dragged outside Castlebar shortly before midnight on the same night was a similar type of car. The
circumstances in which the two girls had been abducted were quite similar. Therefore, the Gardaà had what would
appear to have been a well-founded suspicion that these two men were involved in the disappearance of one or both
of these girls.
That is the background against which the detention of the appellant on
[1982] The People v. Shaw 53
1 I.R. Griffin J. S.C.
the 27th and 28th September, 1976, must be viewed. The primary concern of Superintendent Reynolds, as accepted
by the trial judge, was not to charge the two men with the comparatively minor offence of being in possession of a
stolen motor car but the whereabouts and safety of the two girls. He considered that the safety of Mary and
possibly, and hopefully, of Elizabeth was of much greater importance and urgency than charging the two men, and
that the Gardaà were in duty bound to do everything in their power to obtain such information as they could in
relation to the two girls rather than to bring Evans and the appellant before the District Court on the charge in
relation to the motor car. If the superintendent had done the latter, this would, as pointed out by the Court of
Criminal Appeal in its judgment, have resulted in effectively destroying and losing irretrievably any chance of
obtaining information from the appellant and from Evans which might have led to the saving of the life of Mary, if
she were still alive. While he thought that the prospects of finding Elizabeth alive at that stage were somewhat
remote, the superintendent considered that, due to the short period that had elapsed since Mary disappeared, there
was a good prospect of her being still alive at that time. His investigation satisfied him that Elizabeth had been kept
alive for some 24 hours at the height of the holiday season in Brittas where many people were on holiday. His
professional opinion was that it was not unreasonable to expect that Mary would be kept alive much longer in a
very much quieter area, in particular as it was likely that she was being kept alive for the purpose of being sexually
assaulted by these two men.
Prima facie, the detention of the appellant after the District Court sat was unlawful. Article 40, s. 4, sub-s. 1, of
the Constitution provides that "No citizen shall be deprived of his personal liberty save in accordance with law."It
was submitted on behalf of the appellant that this provision is an absolute one, and that the wording used is not
limited in any way and that, in consequence, the provision is not subject to any limitation. In my opinion, however,
this provision, no more than any other provision of the Constitution, must not be taken in isolation. Article 40, s. 3,
sub-s. 2, provides:— "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." Therefore, the
State had a duty to protect the life and person of Mary. This function of the State fell to be discharged by the
GardaÃ, being the lawfully established police force of the State. For the purposes of this case, that duty devolved
upon the members of the force who were investigating her disappearance and, in
[1982] The People v. Shaw 54
1 I.R. Griffin J. S.C.
particular, upon Superintendent Reynolds.
The real question which arises in this case is whether there were circumstances in which the right to personal
liberty conferred by Article 40, s. 4, sub-s. 1, may be said to have been limited or qualified. Unless there was
justification for limiting or qualifying the right of the appellant to personal liberty, on the facts proved there was a
reasonable prospect on the 27th and 28th September, 1976, that Mary's competing right to life and to the protection
of her person would be seriously and irretrievably endangered. In my opinion, where such a conflict arises, a choice
must be made. It is the duty of the State to protect the more important right, even at the expense of another
important, but less important, right. Therefore, the State must weigh each right for the purpose of evaluating the
merits of each and strike a balance between them and, having done so, take such steps as are necessary to protect
the more important right. Although the right to personal liberty is one of the fundamental rights, if a balance is to be
struck between one person's right to personal liberty for some hours or even days and another person's right to
protection against danger to his life, then in any civilised society, in my view, the latter right must prevail in
circumstances such as those which confronted Superintendent Reynolds.
Applying these principles to this case, Superintendent Reynolds had to make a choice between vindicating the
right of the appellant to personal liberty and endeavouring to save the life of Mary ____, which latter course would
have the necessary consequence of continuing the detention of the appellant. He made that choice and, viewing the
matter objectively from the point of view of foresight and not hindsight, in my opinion he made the correct choice
and, indeed, the only choice which he could reasonably have made in the circumstances. Accordingly, in continuing
the detention of the appellant, the superintendent was not acting unlawfully but was doing what was necessary to
protect the constitutional rights of Mary under Article 40, s. 3, sub-s. 2, of the Constitution.
With regard to the statements made and the evidence given in relation to what was pointed out by the appellant
and what was found as a result of the places visited on the Connemara journey, it is in my view irrelevant whether
the appellant was in lawful or unlawful custody at the time this journey was made. This was a journey undertaken at
his own express request. He it was who volunteered to go and to point out the different places to which he and the
accompanying gardaà subsequently went. In this respect the appellant was a free agent, as the trial judge found,
and all the evidence which was
[1982] The People v. Shaw 55
1 I.R. Griffin J. S.C.
obtained on that journey and which connected him with the offences was discovered directly as a consequence of
his own voluntary acts. In my view, therefore, there was no ground upon which that evidence could have been
excluded at the trial.
However, I should like to add that in my view the appellant's detention was not unlawful at that time. The
explanation of Superintendent Reynolds for permitting that journey was that, although the appellant had confessed
to the killing of Mary, he (the superintendent) could not take the risk of accepting the accuracy of the statements of
the appellant and Evans. The superintendent believed that, notwithstanding the admission of the appellant, there
was still a chance that Mary might be alive and that her life might be saved. The trial judge fully accepted that
explanation. I agree with the Court of Criminal Appeal that it was the duty of the superintendent to pursue even a
remote chance that she might have been alive, and that the chance that she was still alive, though remote, was
sufficient to render the continued detention of the appellant lawful. Indeed, if the superintendent had not permitted
the journey when the appellant volunteered to undertake it, and if the body of Mary had been found subsequently
not in Lough Inagh but tied up in a wood or in a remote building, it would surely be said with hindsight that the
superintendent had neglected his duty to the State and to Mary.
Accordingly, my answer to the question of law set out in the certificate of the Court of Criminal Appeal would
be that the continued detention of the appellant after 10.30 a.m. on Monday, the 27th September, 1976, was lawful,
and that the statements made by him on the 27th and 28th September, 1976, were admissible.
I have had an opportunity of reading the judgment which Mr. Justice Walsh has just delivered. In it he sets out,
under 13 headings, what he sees as the law governing the points raised in this appeal. I do not find it necessary to
express an opinion as to whether the rules or principles he lists are a full compendium of the law applicable to this
case, or as to whether all of them are acceptable in the form in which they are expressed. For example, I do not
think it is correct to state without qualification that no person may be arrested with or without a warrant for the
purpose of interrogation or the securing of evidence from that person. Nor do I find myself able to support the
opinion that a person's statement is to be ruled out as evidence obtained in deliberate and conscious violation of his
constitutional rights, even though the taker of the statement may not have known that what he was doing was either
illegal or unconstitutional. I consider the authorities to be to the contrary effect.
[1982] The People v. Shaw 56
1 I.R. Griffin J. S.C.
For example, in The People (Attorney General) v. O'Brien 11 Kingsmill Moore J. (who gave the majority
judgment), having held that evidence obtained in deliberate and conscious violation of constitutional rights should
be excluded except in "extraordinary excusing circumstances" (which he preferred to leave unspecified), excused as
"a purely accidental and unintentional infringement of the Constitution" the violation complained of in that case:
see p. 162 of the report. See also The People v. Madden 21 at p. 346 where a"factor such as inadvertence" was
recognized as capable of being one of the"extraordinary excusing circumstances" envisaged in O'Brien's Case .11
In my opinion, it is the violation of the person's constitutional rights, and not the particular act complained of, that
has to be deliberate and conscious for the purpose of ruling out a statement. In the present case, I would rank the
superintendent's well-founded anxiety for the life of Mary as an example of an extraordinary excusing circumstance
for keeping the appellant in custody for what otherwise would have been an impermissibly long period.
The existence in a Constitution of certain guaranteed civil, as distinct from natural, fundamental human rights
does not mean that a person is entitled to insist on a particular guaranteed right to the exclusion or disregard of
another person's guaranteed right, or of the common good. Indeed, many of the guaranteed personal rights under
our Constitution are expressly limited in their application. But even where there is no such express limitation, it is a
fundamental canon of construction, as well as being a phenomenon of every legal order, that rights, whether
constitutional or merely legal, are prone to come into conflict with one another to such an extent that in particular
circumstances one of them must yield right of way to another. If possible, fundamental rights under a Constitution
should be given a mutually harmonious application, but when that is not found possible, the hierarchy or priority of
the conflicting rights must be examined, both as between themselves and in relation to the general welfare of
society. This may involve the toning down or even the putting into temporary abeyance of a particular guaranteed
right so that, in a fair and objective way, the more pertinent and important right in a given set of circumstances may
be preferred and given application.
This necessary limitation, by conflict, of fundamental rights is expressly recognized in certain Bills of Rights;
but nowhere, perhaps, more clearly than in article 29(2) of the Universal Declaration of Human Rights which was
adopted by the General Assembly of the United Nations in 1948; it states:—"In the exercise of his rights and
freedoms, everyone shall be subject only to
[1982] The People v. Shaw 57
1 I.R. Griffin J. S.C.
such limitations as are determined by law solely for the purposes of securingdue recognition and respect for the
rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare
in a democratic society." (Italics supplied).
The present case is a good example of an exceptional set of circumstances in which Superintendent Reynolds
had to choose between denying for a limited time the appellant's constitutional right to freedom and seeking to
effectuate the State's duty (and, therefore, Mary's correlative constitutional right to protection) to guard Mary's right
to life. Looking at the dilemma objectively and without the benefit of hindsight, I am unable to say that
Superintendent Reynolds chose the wrong constitutional priority. Therefore, I would hold that the statement of the
appellant taken in those circumstances was such that it should not have been excluded for having been taken in
deliberate and conscious violation of the appellant's constitutional right.
The admissibility of confessions
The ruling made by the trial judge in this case, and the judgment of the Court of Criminal Appeal, proceeded
on the basis that the test of admissibility of the questioned statements was, first, whether each was a statement taken
in deliberate and conscious violation of the appellant's constitutional rights and, secondly, if so, whether it should
nevertheless be held admissible because of extraordinary excusing circumstances. Because the trial, the hearing in
the Court of Criminal Appeal, and the appeal in this Court all rested on the assumption that that represented the
correct test of admissibility, this judgment has ruled on the certified point of law on the same basis.
That, however, does not mean that I or those of my brethren who join in this judgment accept that that test of
admissibility is the correct one. That test derives from certain dicta enunciated in some of the judgments of this
Court in The People (Attorney General) v. O'Brien 11 and it has been applied in a number of subsequent cases. It
needs to be said, however, without in any way questioning the correctness of the actual decision given in O'Brien's
Case 11 , or in any of those other cases in which the same test was applied, that the ambit of the question certified
for the decision of this Court in O'Brien's Case 11 did not lend itself to the pronouncement of any binding
statement of the correct test to be applied when a ruling is required as to whether an allegedly
[1982] The People v. Shaw 58
1 I.R. Griffin J. S.C.
incriminating statement by an accused should be admitted in evidence. As I hope to show, the test for the
admissibility of such statements, in so far as it was propounded in O'Brien's Case 11 , was in terms which went
beyond the issue presented to the Court in that case; it therefore lacks the authoritativeness that it would possess if it
were a necessary element of theratio decidendi of that decision.
The facts in O'Brien's Case 11 were simple in the extreme. The Gardaà hoped to find stolen goods in the
house at No. 118 Captain's Road, and they needed a warrant to search that house. By mistake they received a
warrant to search No. 118 Cashel Road. In ignorance of the mistake, they used the faulty warrant to search No. 118
Captain's Road and they found certain stolen articles there. In the subsequent trial (for housebreaking and for
receiving those stolen articles) of the two accused, who were brothers and who resided at No. 118 Captain's Road,
objection was taken on their behalf that evidence of the finding of those articles was not admissible because of the
defective warrant. That objection was disallowed and the accused were convicted. On the hearing in the Court of
Criminal Appeal of their application for leave to appeal, the same objection was taken and it was again disallowed;
but the Court of Criminal Appeal granted a certificate under s. 29 of the Courts of Justice Act, 1924, which allowed
the accused to pursue their objection in this Court.
In essence, the point certified was whether evidence of stolen goods discovered in an accused person's home
by the use of a search warrant which was inadvertently illegal was admissible, notwithstanding the guarantee in
Article 40, s. 5, of the Constitution that "the dwelling of every citizen is inviolable and shall not be forcibly entered
save in accordance with law."Kingsmill Moore J. (who gave the majority judgment of this Court) framed the
question, as follows, at p. 150 of the report:— "Is evidence procured by the Guards in the course of, and as a result
of, a domiciliary search, unauthorised by a search warrant, admissible in subsequent criminal proceedings?"
The Court unanimously held that such evidence was admissible notwithstanding the irregularity of the warrant
and the illegality of the search on foot of it which brought to light the stolen goods. Indeed, the point was so clear to
Lavery J. (who agreed with the majority judgment of Kingsmill Moore J.) that he was prepared to dismiss the
appeal by saying, at p. 148:— "If a judge were to hold inadmissible the evidence in question in this case, or in any
comparable case, his ruling would, in my opinion, be wrong to the point of absurdity and would bring the
administration of the law into well-deserved
[1982] The People v. Shaw 59
1 I.R. Griffin J. S.C.
contempt."
It will be noted that, because O'Brien's Case 11 was concerned only with the admissibility of evidence as to
goods found in pursuance of the use of a defective search warrant, the scope of its facts did not admit of any
authoritatively binding decision as to the test or tests for the admission in evidence of statements of an inculpatory
nature made by an accused. The latter evidence is evidence emitted by, or extracted from, the accused and, as such,
requires to be tested for admissibility primarily by the manner in which the accused was led, or came, to produce a
confessional or inculpatory statement which the prosecution wishes to adduce in evidence against him. The same
considerations do not necessarily apply when the question is whether testimony as to real evidence (i.e., material
objects other than statements) should be received. The essential difference is that a statement does not exist until the
accused himself makes it.
The limitation imposed by the question before this Court in O'Brien's Case 11 and the essence of the answer
given to it by the majority, were expressed as follows by Kingsmill Moore J. at p. 161 of the report:— "It would
not be in accordance with our system of jurisprudence for this Court to attempt to lay down rules to govern future
hypothetical cases. We can do no more than decide the case now before us, and to lay down that, in future cases, the
presiding judge has a discretion to exclude evidence of facts ascertained by illegal means where it appears to him
that public policy, based on a balancing of public interests, requires such exclusion." Had the judgment of
Kingsmill Moore J. gone no further, O'Brien's Case 11 would probably never have been relied on, in the way it has
been, as an authoritative source for the test as to the admissibility of evidence as to confessions or admissions.
However, because Mr. Justice Walsh in his minority judgment thought it proper to deal with the certified
question on a broader basis, Kingsmill Moore J. added the following at the end of his judgment 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
[1982] The People v. Shaw 60
1 I.R. Griffin J. S.C.
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. 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." (Italics supplied).
Apart from the fact that Kingsmill Moore J. elsewhere in his judgment warns that judicial pronouncements of
a general nature must be readsecundum materiam subjectam, it is clear from the extracts I have cited that theratio
decidendi of O'Brien's Case 11 goes no further than to lay down that when real evidence has been procured by
illegal means, it falls within the discretion of the trial judge to decide whether public policy, based on a balancing of
public interests, requires that such evidence be excluded. The specific and narrow issue involved in the case
prevented its decision from being a vehicle in which to convey an authoritative and binding ruling on the test for the
admission in evidence of oral, written, or other forms of statements tendered as confessions or admissions.
Since the admissibility of such statements is directly in issue in this case, I think it proper and desirable to
express an opinion as to the correct approach to the question of the admissibility of such statements. Before such
statements are admissible, two conditions must be satisfied by the prosecution.
The primary requirement is to show that the statement was voluntary, in the sense in which that adjective has
been judicially construed in the decided cases. Thus, if the tendered statement was coerced or otherwise induced or
extracted without the true and free will of its maker, it will not be held to have been voluntarily made. The
circumstances which will make a statement inadmissible for lack of voluntariness are so varied that it would be
impossible to enumerate or categorize them fully. It is sufficient to say that the decided cases show that a statement
will be excluded as being involuntary if it was wrung from its maker by physical or psychological pressures, by
threats or promises made by persons in authority, by the use of drugs, hypnosis, intoxicating drink, by prolonged
interrogation or excessive questioning, or by any one of a diversity of methods which have in common the result or
the risk that what is tendered as a voluntary statement is not the natural emanation of
[1982] The People v. Shaw 61
1 I.R. Griffin J.; Kenny J. S.C.
a rational intellect and a free will. As to the present case, there is no question but that the questioned statements
were made voluntarily.
Secondly, even if a statement is held to have been voluntarily obtained in the sense indicated, it may
nevertheless be inadmissible for another reason. Because our system of law is accusatorial and not inquisitorial, and
because (as has been stated in a number of decisions of this Court) our Constitution postulates the observance of
basic or fundamental fairness of procedures, the judge presiding at a criminal trial should be astute to see that,
although a statement may be technically voluntary, it should nevertheless be excluded if, by reason of the manner or
of the circumstances in which it was obtained, it falls below the required standards of fairness. The reason for
exclusion here is not so much the risk of an erroneous conviction as the recognition that the minimum of essential
standards must be observed in the administration of justice. Whether the objection to the statement be on
constitutional or other grounds, the crucial test is whether it was obtained in compliance with basic or fundamental
fairness, and the trial judge will have a discretion to exclude it"where it appears to him that public policy, based on
a balancing of public interests, requires such exclusion" —per Kingsmill Moore J. at p. 161 of the report of
O'Brien's Case .11 This is a fairer and more workable test than a consideration of whether the questioned statement
complies with specific constitutional provisions, because most of the criminal trials in this State are held in courts
(the District Court, the Circuit Court and the Special Criminal Court) which, in terms of their judicial personnel,
judicial experience and vested jurisdiction, are not designed for constitutional interpretation or for the balancing of
constitutional rights, or for the preferment of one invoked constitutional provision over another.
The test of basic fairness, based on a due consideration of the rights of the accused coupled with the
requirements, in the interests of the common good, of the prosecution, superimposed on the need for voluntariness,
has the merit of ensuring, if the judicial discretion is correctly exercised, that an accused will not be wrongly or
unfairly convicted out of his own mouth.
Applying those two tests to the facts of the present case, the elucidation I have given earlier in this judgment of
the circumstances in which, and the purpose for which, the questioned statements were taken shows that both those
tests were satisfied. Therefore, I would dismiss this appeal.

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.

Solicitors for the applicant: Tarrant & Tarrant.


Solicitor for the respondent: Chief State Solicitor.

E. P. de B.

[1982] I.R. 1

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