By Dara Robinson
For the last three years, suspects detained by the Gardai (Irish police) for questioning about an offence have enjoyed the entitlement, or so it seemed, to have their solicitor present at all times during their interrogation. This stemmed from the seemingly inexorable tide of European, and UK, cases, in particular those of Salduz and Cadder, and an apparent concession by the Irish state that the presence of a lawyer during questioning was an international best practice norm, even if, as a matter of Irish law, the opposite was the position.
To recap briefly, a decision of the Irish Supreme Court in 1999 (Lavery), announced clearly and firmly, for the first time, that suspects were not entitled to have their lawyers present while they were being interviewed, although they had a constitutional right to consult from time to time during detention. The judgement was ill-thought out and poorly, albeit bluntly, articulated. There the matter rested, until the combined cases of Gormley and White were reviewed in the Supreme Court in 2014. Salduz and Cadder had been decided in the interim, and the Irish Department of Justice had established a working group to address what it clearly saw as the inevitable trend. This included discussion about payment at an hourly rate for lawyers working on the Legal Aid system. Gormley and White, not even directly on point, produced judgements from Judges Clarke and (the now sadly deceased) Hardiman, who obiter dicta, made it clear that Lavery would not survive a challenge. Matters then moved quickly: at the prompting of the Director of Public Prosecutions, the Justice Department circulated the Gardai to the effect the suspects were now entitled to have their lawyers present. Both the Gardai and the Law Society, representing solicitors, drafted and published protocols for their respective members on how business should be conducted. The system got up and running, fairly smoothly, and still does so.
However on January 18th 2017, a potential bombshell landed. In the case of DPP v Barry Doyle, an appeal against conviction for murder, the Supreme Court, in the person of Judge Charleton with support from Chief Justice Denham, ruled clearly that suspects are not entitled to representation during interviews. Judge Charleton relied, in the main, on the passage of time since the Miranda decision, the generally agreed origin of the right, and on the safeguards, in particular electronic recording of interviews, provided by the State to the suspect. His judgement is clear and unambiguous, and has been met with a stunned silence from the authorities. So far, there has been no recorded instance of a suspect being refused the presence of his solicitor despite this clear expression of the law.
The Doyle appeal was a singularly unattractive case on its own merits. It concerned a brutal murder, a gangland “hit”, on the wrong man, mistaken for the intended victim. More pertinently, Doyle was interviewed by the Gardai in February 2009, years before Gormley and White was decided, and he had been given ready access to his solicitor throughout his detention, without ever requesting that his solicitor be allowed to remain during interviews. So at trial, he was seeking to rely on a constitutional right that he had not asserted during his detention, which did not exist at the time of trial, and which, even at the time of his appeal was, at best, obiter dicta.
The question now must be why there has been no response from the authorities. The reasons for this may lie in other judgements of the Court. Chief amongst them is a trenchant dissent from Judge McKechnie, a formidable jurist with, ironically, relatively little criminal law experience as a practitioner. He reviewed the Irish, English and Scottish law, and more significantly, the European position, including Convention case law, the Directive on the Right of Access to a Lawyer – from which Ireland had derogated – and the Charter of Fundamental Rights of the EU. Summing up, he noted “the directional focus” and “the prevailing trend amongst fellow members” of the EU.
Judge McKechnie focussed on “the inequality which now exists in the interview room”, and “the centrality that questioning has assumed in the evidence gathering process”. Seen from both a pragmatic and a purely constitutional viewpoint, he concluded, “the admissibility of these central pieces of evidence [i.e. admissions during interview] will be much more readily established where the highest protection has been afforded to the rights of the suspect during the interview process”. He noted that two of the main players in the Garda Station process, the Gardai themselves and the solicitors’ profession, had developed standards for the interview process, and concluded that “reality, as it now stands, must be faced up to”.
Although outnumbered two to one on the point in question, Judge McKechnie was not necessarily alone. This was a rare seven-judge court. Of the remaining four, Judge Laffoy, a liberal by reputation, did not deliver any judgement at all, while noting that she concurred with the majority. Judge O’Malley, the most experienced criminal lawyer on the bench, felt that, for other reasons, this case did not warrant a review of Lavery, but she noted the Gormley and White decisions and the international trend. Judge O’Donnell, often seen as the intellectual powerhouse of the Court, agreed with the O’Malley view, reflecting, as she had done, on the complexity of legal issues, such as inference provisions, which now arose daily in the Garda station. The last of the seven, Judge McMenamin, disagreed with the defence contention as to the existence of the right in this case, but noted the trend and, in particular, “the reality”. He hinted strongly that Lavery was destined for the dustbin in some future case. It should also be noted that Judge Clarke, author of the leading judgement in Gormley and White, did not participate in this appeal, but may well do so in any future case.
The way forward for Ireland is unclear. The Charleton judgement is the nearest thing to a definitive statement of the law, and yet the daily experience of practitioners continues to be access at all times, including interviews. No doubt the authorities, and all interested parties, especially solicitors, will scrutinise the judgements carefully for hints as to the future, but there are sufficient warning signs from the court, the majority aside, that “the reality” is here to stay.
This blog was published on Fair Trials' website on February 13, 2017.
A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury. Examples of civil rights are freedom of speech, press, and assembly; the right to vote; freedom from involuntary servitude; and the right to equality in public places. Discrimination occurs when the civil rights of an individual are denied or interfered with because of their membership in a particular group or class. Various jurisdictions have enacted statutes to prevent discrimination based on a person's race, sex, religion, age, previous condition of servitude, physical limitation, national origin, and in some instances sexual orientation.
Source: Cornell University Law School