Tuesday 12 November 2019

Landmark ruling could have major impact on future garda inquiries

Mr Justice Frank Clarke: ruling could be far-reaching
Mr Justice Frank Clarke: ruling could be far-reaching

Dearbhail McDonald and Tom Brady

THE Supreme Court has questioned the necessity for some so-called dawn raids by gardai in a ruling that could have major implications for future criminal investigations.

Yesterday, a man jailed for attempted rape had his conviction overturned after the Supreme Court ruled that statements he made to gardai during questioning were inadmissible because they were made before he got legal advice.

The ruling could have major implications for future garda investigations.

The judgment also affects existing cases where convicted criminals have complained they had no access to legal advice during mandatory questioning by gardai.

The Government is taking legal advice after the Supreme Court, which questioned the necessity for some early morning arrests when it could take several hours for a solicitor to arrive at a garda station, indicated that suspects may also have a constitutional right to have a lawyer present during questioning.

The Supreme Court ruled in 1999 that the right of reasonable access does not extend to having a lawyer present during questioning.

But last night legal experts said the Lavery decision was "living on borrowed time" after Supreme Court judge Mr Justice Frank Clarke said that the jurisprudence of the European Court of Human Rights and the United States Supreme Court "clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present".


Policing expert Dermot Walsh, professor of law at Kent University, said the ruling is a judgment of major significance.

"Legal advice is essential to protect vulnerable suspects against the risk of being pressurised into convicting themselves in the secret and alien environment of the garda custody cell, thereby rendering a subsequent public trial with its checks and balances effectively peripheral," he said.

Justice Minister Alan Shatter said the judgment was an important ruling, which had brought a lot of clarity to an issue that had been the subject of much debate.

He said he could not comment on the judgment in detail as he had not had an opportunity to study it.

"Quite clearly, it impacts on how a range of criminal justice issues should be addressed or approached and, as a Supreme Court ruling, agencies involved must comply with the findings," he said.

The Supreme Court overturned the 2008 conviction of Raymond Gormley (29), of Glenwood Park, Letterkenny, Donegal, who was jailed for six years for the attempted rape of a mother-of-two as she slept in her bedroom on April 24, 2005.

The court ruled statements made by Mr Gormley to gardai, after he had requested a solicitor but before that lawyer arrived, were inadmissible.

Mr Justice Clarke said that given previous European court and other decisions, the Supreme Court's finding that the constitutional right to a fair trial includes a right to legal advice before questioning "can hardly come as a surprise".

Mr Justice Adrian Hardiman said it seemed many arrests occur in the early morning, with the possible effect of a wait of several hours before a solicitor can arrive, and he queried whether some "dawn" arrests were really necessary.

He was also concerned it was "more than likely" that, within months, Irish law will provide that the time spent waiting for a solicitor "will be added to a person's detention".

In a separate but linked case, the court unanimously rejected arguments that forensic samples taken from convicted murderer Craig White, after White sought a solicitor and prior to that solicitor's arrival, were inadmissible evidence.

White, of O'Devaney Gardens, Dublin, is serving a life sentence for the murder of Noel Roche (27) at Clontarf Road, Dublin, in November 2005.

Irish Independent

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