Saturday 14 December 2019

State to talk with lawyers over criminal suspects' rights ruling

Mr Justice Frank Clarke
Mr Justice Frank Clarke

Dearbhail McDonald, Legal Editor

THE Government is seeking talks with the Law Society, amid concerns that a recent court ruling on criminal suspects' rights in garda custody could add "significant" costs to Ireland's Criminal Legal Aid Scheme.

Last March the Supreme Court ruled that suspects who requests a solicitor after they have been arrested are entitled to access legal advice before being questioned by gardai.

The Supreme Court, in a unanimous judgment delivered by Mr Justice Frank Clarke, ruled that the entitlement of a suspect not to self-incriminate incorporates an entitlement to legal advice before mandatory questioning.

The ruling, which paves the way for a full right of access to a solicitor during questioning, could have significant cost implications for Ireland's Criminal Legal Aid Scheme according to a working group on the issue.

The access-to-a-solicitor reform, which came into effect earlier this month and is the norm throughout Europe, has been welcomed by the Law Society as a key protection for suspects in custody.

The change means that the means-tested Garda Station Legal Advice Scheme (GLAS), a small part of the overall free legal aid package for criminal suspects, will have to be extended.

The Law Society – the ruling body for solicitors – said a recent directive from the Office of the Director of Public Prosecutions, advising gardai and solicitors to agree to a suspect's request for a solicitor, came without "advance warning".

"It is going to be a major change," said Ken Murphy, director general of the society.

"We have unusually long detention periods in Ireland, it is a new service that the profession has to provide".

Up to 50pc of suspects in the UK ask for legal advice in custody and the vast majority receive it, compared to just 21pc of detainees who opt to use GLAS. However, there are major differences between Ireland and the UK, where all suspects receive free legal advice.

The Department of Justice is contemplating an EU directive on Access to a Lawyer in Criminal Proceedings which would grant access to a solicitor during questioning.

The department said that GLAS was a demand-led scheme which made it difficult to accurately estimate what the cost of extending it might be.

"However, and subject to that caveat, a preliminary working estimate of in or around €2m annually is being used," a spokesperson said.

In its recent ruling, the Supreme Court indicated that Irish law is not compliant with the Constitution or the European Convention of Human Rights by denying suspects the right to have a solicitor present during questioning.

The court did not have to decide this issue on the facts of the two cases presented to it.

But Judge Clarke said it needs to be noted that the jurisprudence of both the European Court of Human Rights and the US Supreme Court "clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present".

Irish Independent

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