Killer's solicitor should have been present during garda interviews, Court of Appeal told

Gary Howard
Gary Howard

The Court of Appeal has been asked to hold that a man jailed for a “brutal” double murder in 2010 was entitled to have his solicitor present during garda interviews.

Gary Howard (27), of Emerald Street in Dublin's North Inner City, had pleaded not guilty at the Central Criminal Court to murdering Patrick Mooney (58) and Brendan Molyneux (46) on January 10 2010. Both men were found shot dead in Mr Mooney's flat at Pearse House, Hanover Street, Dublin.  

Howard was found guilty of their murder by a jury following a six-week trial and was given two life sentences by Mr Justice Paul Carney on May 25 2012.

Howard moved to appeal his convictions yesterday on grounds that his solicitor should have been present during garda interviews, that he did not get access to his solicitor despite three requests and that he was put under psychological pressure by gardaí before making admissions which he later retracted.

Counsel for Howard, Seán Gillane SC, told the three-judge Court of Appeal that the case concerned a “brutal” double murder of two individuals in 2010.

Howard was arrested  and had maintained his right to silence during garda interviews until a statement was put to him which, it had been alleged, would implicate him in the murder.

Mr Gillane said the only contact Howard had with his solicitor that day was a six-minute telephone conversation conducted several hours before that “breakthrough interview”.

After the statement had been read to Howard, he asked the gardaí three times if he could see his solicitor. Mr Gillane said his requests were acknowledged by the two interviewing gardaí but it was not communicated to the member in charge.

The failure to communicate his repeated request was “legally inexcusable,” Mr Gillane said. Immediately afterwards, Howard made admissions without receiving the advice he had sought.

Citing the Supreme Court decision on a detainee's reasonable access to a solicitor while in custody, known as Gormley and White, Mr Gillane submitted that Howard's solicitor should have been present during the garda interviews.

Without the presence of his solicitor as was his right, Mr Gillane submitted, Howard did not get a trial in due course of law.

Mr Gillane said the right to silence was the right of an accused not to incriminate himself but Howard's exercise of that right was depracated, mocked and suppressed at each and every twist and turn.

His questioning amounted to oppression in the classic sense, Mr Gillane said, and on a stand alone basis would merit the exclusion of those interviews from the trial.

Howard was told by the interviewing gardaí that he should 'take the rap', that he was the reason his pregnant girlfriend had been arrested and that he was keeping her in custody, nobody else. Reference was made to hospital, how long she had been pregnant and how Howard could 'drag her out' of custody, Mr Gillane said.

He was also told that his uncle and father were in custody and 'maybe his whole family'.

It was “outrageous” to say that to somebody in custody not in communication with their family, Mr Gillane said. All of this happened while Howard was attempting to exercise his right to silence.

Further remarks by gardaí left Howard with a Hobson's choice, Mr Gillane said, a point picked up on by the trial judge – that he better say something or he'll get a bullet in the head from the IRA.

Mr Justice John Edwards asked Mr Gillane if he was suggesting that gardaí should close their notebooks when met with 'no comment' from somebody they strongly suspected of a serious crime. Mr Gillane said “no” but added that the right should be treated with dignity.

Mr Justice George Birmingham put it to Mr Gillane that his suggested line of questioning would not “achieve much” to which counsel said: “Dare I say it, well and good”.

Mr Gillane said Ireland would join all other common law jurisdictions in determining that this particular line of questioning was “beyond the pale” because it exercised huge psychological pressure on a detainee.

It was even more wrong now that Gormley was understood – that a solicitor should have been there to prevent all of this. This could not and does not happen 100 miles across the water in Ireland's sister jurisdictions, Mr Gillane said.

Counsel for the Director of Public Prosecutions, Brendan Grehan SC, said Howard's detention fully complied with the stated position in Gormley and White.

Mr Grehan said Howard never requested to have his solicitor present for questioning and that effectively “is the end of it”. If Howard had such a right he never requested it.

There simply was no factual basis or legal basis that would cause the Court of Appeal to expand beyond the ratio of Gormley and White, Mr Grehan said.

He said respectfully that some of Mr Gillane's submissions were more appropriate for the Supreme Court – he was submitting that the law as stated in Gormley and White should go further.

On the submission that Howard was oppressed by gardaí, Mr Grehan said the gardaí were seeking to focus his mind on certain issues.

It was “part and parcel” of a seven day detention that the gardaí did not fold on the first day and leave matters be.

When asked in the first interview why he killed the two men, Howard told the gardaí that he didn't kill anybody; 'You're getting paid to find out so fuck off and do it,' he told them, the court heard.

If the gardaí's hands were tied because an accused is able to tell them what to do and how to do it, trial courts wouldn't have a lot to do in the future but what happend in society might be a different question, Mr Grehan said.

Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would reserve judgement.