Saturday 7 December 2019

New right to keep solicitor present during questioning is vital protection for citizens

Gardai sign
Gardai sign

Shalom Binchy

Earlier this month, a radical improvement to the rights of persons who find themselves being questioned by An Garda Siochana about an alleged criminal offence was quietly implemented.

There was no new legislation passed. There was no heated debate in the Dail. There was no fanfare.

Ireland was brought into line with international best practice by way of an email from the Department of Justice to the Law Society, the ruling body for solicitors, to inform them that their members may now remain to advise their clients during garda interview if this is requested by the arrested person.

This has long been the norm in many other jurisdictions.

The United States introduced similar protection for its citizens in 1966, while England and Wales have operated a similar provision for many years.

Ireland's journey to this momentous change has been long and this right has been hard won.

Throughout the European Union, restrictions on a person's right to have full access to legal advice have been repeatedly challenged.

A series of Irish cases have raised this issue in our domestic courts. In March of this year, the Supreme Court gave judgment in the joined cases of Gormley and White.

The five-judge court held that a statement taken prior to obtaining legal advice, in circumstances where the detained person had requested the advice of a solicitor, was a breach of the detained person's constitutional right to fair process. They further held that "a person who requests the presence of a solicitor must be accorded that right".

The judgment did not explicitly deal with the issue of a client's right to have his/her solicitor present during interrogation but it did refer to the fact that "the jurisprudence of both the European Court of Human Rights and the United States Supreme Court clearly recognised that the entitlements for a suspect extend to having the relevant lawyer present".

The judgment is likely to have influenced the Department of Justice's decision to permit the presence of a solicitor during questioning.

At an EU level, Ireland is obliged to legislate for the presence of solicitors during police interrogation by November 27, 2016.

Prior to the recent change of attitude by the State, a person detained was entitled to legal advice at any time during their detention period. However, the solicitor was not permitted to remain during the questioning.

The change affords a vital protection to citizens at a crucial stage of the investigation. The European Court of Human Rights held in the case of Salduz v Turkey (2008) that it is too late to seek to vindicate the rights of an accused at trial when an incriminating statement has been made during interrogation without access to a lawyer.

In Ireland, a solicitor can now at the request of their client, remain during garda interview where they can protect and advance their client's rights.

People who are questioned by the gardai come from all walks of life.

They may have an intellectual disability; they may have a major psychiatric illness such as severe depression or psychosis, they may have had little or no formal education, they may be vulnerable in any number of ways.

Even for the well educated and robust individual, detention in a garda station can be an intimidating experience. The cells are usually cold and dirty.

The gardai hold all the power.

They have all the information and they choose how and when they disclose this information to a suspect. They can take many forensic samples including mouth swabs without consent. They can remove a person's right to silence.

Recent changes will go some way to ensuring equality of arms: but a solicitor's presence during interrogation will not impede robust and searching questioning by gardai.

The changes will hopefully go some way to ensuring that questioning by An Garda Siochana is fair, appropriate and lawful.

After all, as Mr Justice Clarke confirmed in his decision in Gormley, the constitutional guarantee of trial in due course of law means that "a trial was required to be conducted in accordance with the concept of justice, that the procedures applied be fair, and that the person accused be given every opportunity to put forward a defence to the charges".

Shalom Binchy is a Dublin-based solicitor and a member of the Law Society Criminal Law Committee and the District Court Rules Committee.

Irish Independent

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