An admission voluntarily made during a psychological assessment may be admissible in a subsequent criminal trial, the Supreme Court has ruled.
The judgment of the five-judge court delivered on Friday affirms the “wide discretion” the Director of Public Prosecutions (DPP) has to prosecute even when a prior decision not to prosecute has been made.
The decision comes in an appeal by a woman against the Court of Appeal’s decision that alleged admissions made during a court-arranged psychological assessment are admissible in a retrial.
The Supreme Court agreed the alleged confessions are admissible but said it needs a further hearing to determine whether it should direct a retrial of the woman on four counts of sexual assault and a count of allowing a child in her custody to be assaulted, ill-treated, neglected or exposed to unnecessary suffering.
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She had been acquitted, on a directed not-guilty verdict, in the Circuit Court in 2021 of the counts, which relate to her three sons, all of whom are physically and mentally disabled.
Her husband and another man were successfully prosecuted and given prison sentences in relation to offences committed against them.
These proceedings were brought on foot of an investigation by gardaí into what appeared to be a serious case of child sexual abuse imagery that was shared online.
The mother had completely denied involvement in, or awareness of, the crimes when interviewed under caution by gardaí. The DPP decided in 2015 not to prosecute her.
However, the DPP later directed charges after she made alleged admissions during a psychological assessment that was directed by the High Court in wardship-type proceedings considering her maternal capacity and the care arrangements for her sons, two of whom are adults.
The Circuit Court judge ruled this evidence was inadmissible, pointing to the length and nature of the interviews, the use of a lie detector, the lack of cautioning, and the fact the DPP previously told her a decision had been made not to prosecute her in this matter.
Due to insufficient other evidence, the judge directed a not-guilty verdict.
The Supreme Court on Friday held that the Circuit Court judge erred in excluding the alleged confessions from the woman’s trial.
The safeguards required when a person is questioned while under arrest are “not applicable” to a psychological assessment voluntarily engaged in by an accused, Mr Justice Peter Charleton wrote on behalf of the court.
The use of a lie detector by the psychologist did not result in any unfairness to the woman, and this was not a case where polygraph results were sought to be introduced as evidence in the trial, he said.
The court said the Criminal Procedure Act of 2010 requires it to hear further argument as to whether there should be a retrial. It scheduled a hearing for next month.
The woman’s lawyers argued in the appeal that she was effectively forced into the psychological examination, which, she said, was conducted in an oppressive manner. The DPP should never have revised her opinion not to prosecute, they submitted.
Mr Justice Charleton noted in his judgment that, while the criminal prosecution consisted of alleged admissions, the court makes “no comment” as to whether there was “any sufficient admission or circumstantial evidence”.
He said the woman was legally represented around the time of the interview and it was clear the psychological assessment she was participating in was “not confidential” and new disclosures of sexual abuse against children or vulnerable adults would be “on the record” and could be “shared with other agencies, if necessary, to comply with statutory guidelines”.
None of the issues in the appeal can be divorced from the reporting duties on individuals to whom any disclosure of child abuse is made, Mr Justice Charleton said.
There are situations where a confession by an accused may be excluded from evidence due to unacceptable conduct on the part of investigators, he said, adding that the court upholds the general principle that admissions should be fairly obtained and not extracted by deception or trickery.
Here, the court found the “entire process” was conducted in a manner that was fair to the accused, the judge said.
Ms Justice Elizabeth Dunne, Ms Justice Iseult O’Malley, Mr Justice Séamus Woulfe and Mr Justice Brian Murray agreed with their colleague’s conclusions.
