Arrest for Questioning
Historically, persons were arrested solely for the purpose of being brought before the Court. The Offences against the State legislation provided for arrest for the purpose of questioning. The Criminal Justice Act 1984 made more general provision for arrest for the purpose of questioning.
A range of constitutional rights arises in the context of custody of persons ( who are presumed innocent) for the purpose of questioning. The right to liberty, right to privacy, silence, bodily integrity and rights of access to justice are engaged.
There was (and in most cases, there still is) in effect a right to silence and that no adverse inferences could be drawn from a failure to answer questions put by the police or other authority.
Gradually, legislation particularly that following notorious instances of so-called gang-related crime and the Omagh bomb extended the scope of legislation by which inferences could be drawn from failures to respond or account for particular matters. This followed from developments in the United Kingdom, which had qualified the right to silence in a similar, but more comprehensive way.
Evolution of Right
The 1984 legislation allowing for detention for questioning provided a statutory right of access to a lawyer. The Supreme Court has held that the right of access to a lawyer is a constitutional right and not a mere legal right. The right appears to be derived from the right to a trial in due course of law and the right to fair procedures. The implication is that a breach of the constitutional right may potentially lead to exclusion of evidence arising in consequence.
Prior to 2014, the right was not an absolute right to have a lawyer present during questioning. It was a right of reasonable access.
The Courts have long held that there is a right to a lawyer at the trial stage in respect of non-minor offences and many minor offences, where there is a risk of a custodial sentence.
In 2002, a non-statutory Garda Station Legal Aid Scheme was introduced. It was administered by the Legal Aid Board and available to persons in detention, who are in receipt of social welfare payments or have earnings less than €20,000 per annum.
The Courts have held that there is a right of reasonable access to legal advice during questioning. What is reasonable depends on all the circumstances, the time at which access is requested and the availability of the legal advisors sought. The accused has a right to be informed of his right to legal access under the statute and probably as a matter of constitutional rights.
Exercise of Right
Under the Criminal Justice Act, the accused having been informed of the right wishes to consult with a solicitor, the member in charge shall cause the solicitor to be notified as soon as practicable. The position appears to be that it is sufficient that they make reasonable efforts to facilitate access. See later developments in the law below.
If the nominated solicitor cannot be contacted within a reasonable time or if the solicitor is unable or unwilling to attend, the person is to be given an opportunity to ask for another solicitor and if the person asks for another solicitor, the member in charge shall notify or cause to be notified that other solicitor, as soon as practicable.
Where the solicitor is present, he should be allowed immediate access to the questioned person. Postponement of access might only be justified for objective good reasons related to the welfare of the person concerned.
Consultation implies privacy. This may be within the sight of a member of an Garda Síochána but not hearing distance. Consultation may be by telephone.
The detention clock stops at the time the detained person requests a solicitor and resumes at the commencement of the consultation. The maximum period that may be excluded is three hours.
Statements and Access
The fact that he is in the course of making a statement is not a sufficient reason. Parts of an interview given before access to legal advice might be admissible. This is provided they can be severed from the remaining part.
The accused person is entitled to reasonable access to a solicitor of his choice and is entitled to communicate with him privately. It may take place in the sight of, but not within the hearing of the member of An Garda Síochána.Where the detained person consults with a solicitor by telephone, he has a right to do so in private.
It appears that questioning of the accused before a solicitor is present is permissible and the statements given are admissible in evidence. This is so notwithstanding that a solicitor has been requested and the Gardai have been unable to contact him. The Gardai however must make bona fide attempts to comply with the request.
The custody regulations provide that where an accused person asks for a solicitor, he shall not be asked to make a written statement in relation to the offence until a reasonable time for attendance of the solicitor has elapsed. It appears that Gardai may continue to ask questions, provided that a person is not asked to make a written statement.
Where a person continued to be questioned while the Gardai were aware that there would be a considerable delay in the solicitor attending, it was held that there had been a deliberate and conscious breach of the right of access to a solicitor. However, if the attempts are bona fide, the fact that the solicitor is late or takes longer than expected does not of itself exclude that statement made during his absence.
Evidence will be excluded only if the statement is obtained as a result of the breach of constitutional rights.
Lawyer During Questioning
The European Court of Human Rights had held several times, that a suspect should not be questioned until he has been afforded the right to legal advice. The Criminal Justice Act 2011 made provision for legal advice. The Act provided that no questioning of a person detained under the Criminal Justice Act should take place until such time as the person has had an opportunity to consult with a lawyer. Equivalent provision applies to Offences against the State Acts and the Criminal Justice, Drug Trafficking Act
The following provisions of the Criminal Justice Act 2011 were never commenced into law. The Act provided that no questioning of a person detained under the Criminal Justice Act should take place until such time as the person has had an opportunity to consult with a lawyer. Equivalent provision applied to Offences against the State Acts and the Criminal Justice, Drug Trafficking Act.
The Gardai may question the suspect prior to access to legal advice where the suspect waives his right by refusing to consult with a solicitor who has made himself available for that purpose. A member in charge of An Garda Síochána may authorise the questioning prior to access where he has reasonable grounds for believing that delay would result in any of the following:
- interference with or injury to any other person;
- serious loss or damage to property;
- destruction of or interference with evidence;
- accomplices being alerted or the securing of their apprehension being made more difficult;
- hindering the recovery of property obtained as a result of the offence or the recovery of the value of the proceeds of an offence.
2014 Supreme Court Case
The European Court of Human Rights has held that a suspect should not be questioned until he has been afforded the right to legal advice. In other states, including the United Kingdom and the United States, the right of access to a lawyer has been recognised to imply a right for the lawyer to be present during questioning.
The issues becomes more acute in circumstances where the legislation provides for adverse inferences from failure to answer or from silence. The safeguards in the conditions of these mechanisms, is that the accused should be given a reasonable right to consult with a solicitor, before the relevant questioning.
The Courts had appeared to have held that there is no right to have a solicitor present during questioning prior to 2014. In 2014 the Supreme Court decided that the interrogation of the detained suspect should not commence until after legal advice, where sought, has been obtained. This followed from a the case law of the European Court of Human rights.
“… the need for basic fairness, which is inherent in the requirement of trial in due course of law under Article 38.1 of the Constitution, carries with it, at least in general terms and potentially subject to exceptions, an entitlement not to be interrogated after a request for a lawyer has been made and before that lawyer has become available to tender the requested advice”
“the entitlement not to self-incriminate incorporates an entitlement to legal advice in advance of mandatory questioning of a suspect in custody.”
“… [t]he right to a trial in due course of law encompasses a right to early access to a lawyer after arrest and the right not to be interrogated without having had an opportunity to obtain such advice. The conviction of a person wholly or significantly on the basis of evidence obtained contrary to those constitutional entitlements represents a conviction following an unfair trial process.
If any exceptions to the right to legal advice before interrogation “are to be recognised, then it would be necessary that there be wholly exceptional circumstances involving a pressing and compelling need to protect other major constitutional rights such as the right to life”.
This marked a radical overnight change in practice. In May 2014 the DPP issued a letter to An Garda Siochana instructing that where requested the attendance of solicitor should be facilitated and all suspects should be advised that they may request the solicitor to attend interviews. A 2015 Garda Siochana Code of Practice applies.
2016 EU Directive
EU Directive provides minimum rights, including the right of access to a lawyer on the part of suspects, the right to have third-parties informed that deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.
The right of access to a lawyer requires that states shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement authority or judicial authority.
States are to ensure that suspects and accused persons have the right for their lawyer to be present and participate effectively when questioned. Participation shall be in accordance with procedures under national law. Procedures must not prejudice the effective exercise of the rights concerned. Where a lawyer participates during questioning, the fact that the participation has taken place shall be noted under the recording procedures in accordance with the law of the member state.
States shall ensure that suspects or accused person shall have as a minimum, the right for their lawyer to attend the following investigative or evidence gathering acts or those acts as are provided for under the national law and if the suspect or accused person is required or permitted to attend the act concerned;
- identity parades;
- reconstructions of the scene of a crime.
States are to endeavour to give or generally to make information available to facilitate by a suspects or accused person in obtaining an order. States shall respect confidentiality of communications between suspects or accused persons and their lawyers in the exercise of their right of access. The suspect or accused person may waive his right of access subject to condition.
The Directive is to be implemented by November 2016. A Working Group was established to review the implementation of the Directive in Ireland. It would require substantially increase in the criminal legal aid budget, and the availability of a panel of solicitor’s to represent detainees.