{"id":1648,"date":"2021-08-03T06:54:01","date_gmt":"2021-08-03T06:54:01","guid":{"rendered":"http:\/\/legalblog.ie\/?p=1648"},"modified":"2023-09-04T14:35:36","modified_gmt":"2023-09-04T14:35:36","slug":"access-to-legal-advisor","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/access-to-legal-advisor\/","title":{"rendered":"Access to Legal Advisor"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/access-to-legal-advisor\/#Arrest_for_Questioning\" title=\"Arrest for Questioning\">Arrest for Questioning<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/access-to-legal-advisor\/#Evolution_of_Right\" title=\"Evolution of Right\">Evolution of Right<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/access-to-legal-advisor\/#Exercise_of_Right\" title=\"Exercise of Right\">Exercise of Right<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/access-to-legal-advisor\/#Statements_and_Access\" title=\"Statements and Access\">Statements and Access<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/access-to-legal-advisor\/#Lawyer_During_Questioning\" title=\"Lawyer During Questioning\">Lawyer During Questioning<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/access-to-legal-advisor\/#2014_Supreme_Court_Case\" title=\"2014 Supreme Court Case\">2014 Supreme Court Case<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/access-to-legal-advisor\/#2016_EU_Directive\" title=\"2016 EU Directive\">2016 EU Directive<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Arrest_for_Questioning\"><\/span>Arrest for Questioning<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Historically, persons were arrested solely for the purpose of being brought before the Court. The \u00a0Offences against the State legislation provided for arrest for the purpose of questioning.\u00a0 The Criminal Justice Act 1984 made\u00a0 more general provision for arrest for the purpose of questioning.<\/p>\n<p>A range of constitutional rights arises in the context of custody of persons ( who are presumed innocent) for the purpose of questioning.\u00a0 The right to liberty, right to privacy, silence, bodily integrity and rights of access to justice are engaged.<\/p>\n<p>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.<\/p>\n<p>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.\u00a0 This followed from developments in the United Kingdom, which had qualified the right to silence in a similar, but more comprehensive way.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Evolution_of_Right\"><\/span>Evolution of Right<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The 1984 legislation allowing for detention for questioning provided a statutory right of access to a lawyer.\u00a0 The Supreme Court has held that the right of access to a lawyer is a constitutional right and not a mere legal right.\u00a0 The right appears to be derived from the right to a trial in due course of law and the right to fair procedures.\u00a0 The implication is that a breach of the constitutional right may potentially lead to exclusion of evidence arising in consequence.<\/p>\n<p>Prior to 2014, the right was not an absolute right to have a lawyer present during questioning.\u00a0 It was a right of reasonable access.<\/p>\n<p>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.<\/p>\n<p>In 2002, a non-statutory Garda Station Legal Aid Scheme was introduced.\u00a0 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 \u20ac20,000 per annum.<\/p>\n<p>The Courts have held that there is a right of reasonable access to legal advice during questioning.\u00a0 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Exercise_of_Right\"><\/span>Exercise of Right<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Under the Criminal Justice Act,\u00a0 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.\u00a0 The position appears to be that it is sufficient that they make reasonable efforts to facilitate access. See later developments in the law below.<\/p>\n<p>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.<\/p>\n<p>Where the solicitor is present, he should be allowed immediate access to the questioned person.\u00a0 Postponement of access might only be justified for objective good reasons related to the welfare of the person concerned.<\/p>\n<p>Consultation implies privacy.\u00a0 This may be within the sight of a member of an Garda S\u00edoch\u00e1na but not hearing distance.\u00a0 Consultation may be by telephone.<\/p>\n<p>The detention clock stops at the time the detained person requests a solicitor and resumes at the commencement of the consultation.\u00a0 The maximum period that may be excluded is three hours.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Statements_and_Access\"><\/span>Statements and Access<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The fact that he is in the course of making a statement is not a sufficient reason.\u00a0Parts of an interview given before access to legal advice might be admissible.\u00a0\u00a0 This is provided they can be severed from the remaining part.<\/p>\n<p>The accused person is entitled to reasonable access to a solicitor of his choice and is entitled to communicate with him privately.\u00a0 It may take place in the sight of, but not within the hearing of the member of An Garda S\u00edoch\u00e1na.Where the detained person consults with a solicitor by telephone, he has a right to do so in private.<\/p>\n<p>It appears that questioning of the accused before a solicitor is present is permissible and the statements given are admissible in evidence.\u00a0 This is so notwithstanding that a solicitor has been requested and the Gardai have been unable to contact him.\u00a0 The Gardai however must make bona fide attempts to comply with the request.<\/p>\n<p>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.\u00a0 It appears that Gardai may continue to ask questions, provided that a person is not asked to make a written statement.<\/p>\n<p>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.\u00a0 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.<\/p>\n<p>Evidence will be excluded only if the statement is obtained as a result of the breach of constitutional rights.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Lawyer_During_Questioning\"><\/span>Lawyer During Questioning<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.\u00a0 Equivalent provision applies to Offences against the State Acts and the Criminal Justice, Drug Trafficking Act<\/p>\n<p>The following provisions of the Criminal Justice Act 2011 were never commenced into law.\u00a0The 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.\u00a0 Equivalent provision applied to Offences against the State Acts and the Criminal Justice, Drug Trafficking Act.<\/p>\n<p>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.\u00a0A member in charge of An Garda S\u00edoch\u00e1na may authorise the questioning prior to access where he has reasonable grounds for believing that delay would result in any of the following:<\/p>\n<ul>\n<li>interference with or injury to any other person;<\/li>\n<li>serious loss or damage to property;<\/li>\n<li>destruction of or interference with evidence;<\/li>\n<li>accomplices being alerted or the securing of their apprehension being made more difficult;<\/li>\n<li>hindering the recovery of property obtained as a result of the offence or the recovery of the value of the proceeds of an offence.<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"2014_Supreme_Court_Case\"><\/span>2014 Supreme Court Case<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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\u00a0 imply a right for the lawyer to be present during questioning.<\/p>\n<p>The issues becomes more acute in circumstances where the legislation provides for adverse inferences from failure to answer or from silence.\u00a0 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.<\/p>\n<p>The Courts had\u00a0 \u00a0appeared 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.<\/p>\n<p><em>\u00a0\u201c\u2026 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\u201d<\/em><br \/>\n<em>\u00a0\u201cthe entitlement not to self-incriminate incorporates an entitlement to legal advice in advance of mandatory questioning of a suspect in custody.\u201d<\/em><br \/>\n<em>\u201c\u2026 [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.<\/em><\/p>\n<p><em>\u00a0If any exceptions to the right to legal advice before interrogation \u201care 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\u201d.<\/em><\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"2016_EU_Directive\"><\/span>2016 EU Directive<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>States are to ensure that suspects and accused persons have the right for their lawyer to be present and participate effectively when questioned.\u00a0 Participation shall be in accordance with procedures under national law.\u00a0 Procedures must not prejudice the effective exercise of the rights concerned.\u00a0 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.<\/p>\n<p>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;<\/p>\n<ul>\n<li>identity parades;<\/li>\n<li>confrontations;<\/li>\n<li>reconstructions of the scene of a crime.<\/li>\n<\/ul>\n<p>States are to endeavour to give or generally to make information available to facilitate by a suspects or accused person in obtaining an order.\u00a0 States shall respect confidentiality of communications between suspects or accused persons and their lawyers in the exercise of their right of access.\u00a0 The suspect or accused person may waive his right of access subject to condition.<\/p>\n<p>The Directive is to be implemented by November 2016.\u00a0A Working Group was established to review the implementation of the Directive in Ireland.\u00a0 It would require substantially increase in the criminal legal aid budget, and the availability of a panel of solicitor&#8217;s to represent detainees.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-1648\" data-postid=\"1648\" class=\"themify_builder_content themify_builder_content-1648 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Arrest for Questioning Historically, persons were arrested solely for the purpose of being brought before the Court. The \u00a0Offences against the State legislation provided for arrest for the purpose of questioning.\u00a0 The Criminal Justice Act 1984 made\u00a0 more general provision for arrest for the purpose of questioning. A range of constitutional rights arises in the [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[173],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1648"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=1648"}],"version-history":[{"count":16,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1648\/revisions"}],"predecessor-version":[{"id":26852,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1648\/revisions\/26852"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=1648"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=1648"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=1648"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}