The Court of Criminal Appeal yesterday issued a strong caution to gardaí concerning the importance of electronic taping of interviews with suspects in serious criminal trials when this is possible.
A man found guilty early last year of the murder of a German woman whose decomposed body was found in dense undergrowth three weeks after she was last seen walking to Newgrange, Co Meath, yesterday lost an appeal in the Court of Criminal Appeal against his conviction.
The three-judge appeal court dismissed the appeal of Michael Murphy (43), Rathmullen Park, Drogheda, who was unanimously found guilty by a jury in the Central Criminal Court of the murder of the woman, Bettina Poeschel (28). But in dismissing Murphy's appeal, the appeal court referred to the failure in some cases to make video recordings of Garda interviews in Garda stations.
Mr Justice Kearns - sitting with Mr Justice Diarmuid O'Donovan and Mr Justice Liam McKechnie - said that in future there should be "a marked reluctance to excuse failures" to comply with requirements of the Criminal Justice Act, 1984 (Electronic Recording of Interviews Regulations, 1997), other than the circumstances specified in the regulations themselves.
The appeal judges said that from now on, the court should only exercise its discretion under the Act for very good reason.
A central ground of Murphy's appeal was that the trial judge was wrong to admit into evidence Garda interviews with him because those interviews were not video recorded, despite provisions in regulations made in 1997.
Mr Justice Kearns recalled the recent and tragic case of Dean Lyons, who confessed in a police interview to a double-murder he could not have committed.
Within the past few months the appeal court set aside the only conviction recorded in relation to the Omagh bombing for reasons which related in part to alterations found by the Special Criminal Court to have been made to interview notes. In neither of those cases were the interviews recorded electronically.
Mr Justice Kearns continued: "These remarks should not be taken as lending support to any view that these instances are common or that gardaí regularly misbehave in relation to the taking of confessions - on the contrary, it may often be the case that it is the Garda Síochána who themselves are most put at risk by the failure to provide simple and basic electronic equipment which would protect them from the bringing of baseless allegations of ill-treatment or other misbehaviour in or about the taking of confessions."
The legislation was introduced at a time when convictions recorded in a number of high-profile criminal trials in Britain were under attack and later set aside in circumstances where the evidence leading to conviction had largely consisted of uncorroborated confessions later found to have been compelled, altered or falsified.
Widespread concern about such cases was expressed in many quarters and notably in Ireland. Public confidence in the proper administration of justice and in the police was undoubtedly damaged when cases of this nature, often involving the most serious of crimes, occurred.
In this appeal the court had decided to apply a section of the Criminal Justice Act to hold that the failure to comply with the regulations in the present case should not render inadmissible in evidence the admissions made by Murphy on October 27th, 2001.
The appeal judges had reached this conclusion partly because the events took place in October 2001 some considerable time before an appeal court judgment in May 2002 drawing attention to the need for video recordings; and more importantly because no great contest arose at the trial as to what was actually said by Murphy.
The court was satisfied there was no improper pressure, manipulation or threat of any sort adopted or applied by the interviewing gardaí during the period of Murphy's detention on October 27th, 2001.
Mr Justice Kearns said Murphy was arrested at 8.10am on October 27th, 2001, under section 4 of the Criminal Law Act, 1997 and was brought to Drogheda Garda station. He was charged with murder that evening.
Among claims made on behalf of Murphy, it was contended that any interview of him in the station following his arrest should have been recorded electronically. Reliance was placed on the regulations which came into force on March 1st, 1997.
All formal interviews by gardaí of people suspected of crimes which would carry sentences of more than five years are now videotaped, a Garda Press Office spokesman said.
Although he could not comment on this case as he had not studied the judgment, the normal procedure was that all formal interviews for serious offences were videotaped. The suspect had the right to refuse to be videotaped.
A report of the Steering Committee on Audio and Audio-Visual Recording of Garda Questioning of Detained Person said the overall operation of the scheme was satisfactory. Minister for Justice Michael McDowell said over 96 per cent of interviews were recorded under the legislation.