The advent here of the US Miranda approach to access to a lawyer for an arrested person moved a step closer as a result of a landmark Supreme Court judgment earlier this month.
The judgment dealt with two appeals from the Court of Criminal Appeal which raised essentially the same issue: the question of what happens when a person in custody seeks to consult a solicitor but gardaí proceed to deal with them before the solicitor arrives.
Despite the similarities, two outcomes occurred for the appellants concerned. In one, the ruling resulted in the appeal of a Donegal man for attempted rape being allowed because he was convicted “substantially on the basis of admission evidence made during interrogation in custody during a period after he had requested the presence of a solicitor and before that solicitor had arrived to advise him”.
In contrast, the other appeal in which the appellant was convicted of murder failed, although he, too, had sought access to a solicitor but before the solicitor arrived, gardaí had proceeded to obtain a buccal swab from him for DNA comparison purposes. The court distinguished his circumstances because of the objective nature of the evidence obtained from him and also because he was “legally obliged to provide those samples and same were taken in an unobtrusive way”.
The judgment is firmly rooted in a more developed interpretation of domestic Irish law and in particular the Constitution and the right to a trial “in due course of law” provided for in Article 38.1. However, the analysis of the right engaged in by the court betrays a more international and indeed continental influence.
In the judgment of the court, delivered by Mr Justice Frank Clarke and with which the four other judges agreed (but with Mr Justice Adrian Hardiman delivering a separate concurring judgment), there is a wide- ranging survey of the origin and rationale of the right on the world stage. It began with the famous Miranda decision of the US Supreme Court in 1966 and drew on developments since then in jurisdictions as far apart as Canada and New Zealand, as well as the more recent European Court of Human Rights decisions closer to home.
Before the judgment, the right here was defined as being one of “reasonable access”, a concept which in the view of many commentators left much to the discretion of gardaí and allowed far too much room for divergence and argument over what was supposed to be a principle.
After all, what was “reasonable access” at 3pm on a Monday in Dublin could be (and as was so found in this case) a very different matter from “reasonable access” at 3pm on a Sunday afternoon in Donegal.
Over the years, this characterisation of the right as being one only of “reasonable access” diminished the protection for suspects and Ireland fell out of step with developments elsewhere.
The decision obviously has ramifications beyond the cases concerned as it heralds a much more absolute and pro-suspect analysis of the right than suggested heretofore. While it leaves unresolved for the moment a number of issues that will arise, including the big question of whether a suspect will have the right to have their lawyer present while being interviewed, it would appear to signpost clearly that this is the way forward.
This further development is very likely indeed as it would involve the full adoption of the US Miranda rights model as well as embracing recent European jurisprudence reflected not just in the case law of the European Court of Human Rights but also as codified under European Community law adopted last November (albeit with Ireland entering a reservation to our adoption of it).
There are immediate and pressing implications on a number of levels.
For gardaí investigating crimes, they will have to ensure as a minimum that they are in compliance with the requirements of the judgment as delivered, if they want to be able to use the fruits of any interview with a suspect. This may involve a more selective decision where this is possible in terms of the timing of an arrest.
In addition, they would be wise to anticipate that a failure to allow a solicitor to be present for interview when this is requested by an accused is likely to be found in the very near future also to be in breach of the right.
For the legislature, the task is a bit more complex. A provision to deal with the situation (no doubt enacted as a result of developments at the European level) was passed into law by section 9 of Criminal Justice Act 2011, but the section has not yet been commenced. These legislative proposals simply extend the detention of a suspect until a solicitor is procured but this alone as a solution may ultimately be viewed as constitutionally dubious.
Mr Justice Hardiman in his judgment suggests that the State is obliged to do more than this and that there may be an obligation on the State to arrange to have a system in place whereby a suitably qualified and experienced solicitor is available to a suspect rather than simply depriving someone of their liberty unnecessarily for an undue and lengthy period while awaiting the arrival of a solicitor on some ad hoc basis.
Furthermore, he suggests that “those whose duty it is to take account of potential developments” should think carefully about a broader right of access to legal advice while in custody.
The implicit suggestion appears to be that the State should provide for the entitlement of a detained person to have their lawyer present throughout Garda questioning. Such an extension of access is now all but inevitable and would bring Ireland into line with best international practice.
For cases already in the system, the implications of the decision are likely to be dealt with in the same manner as the fallout from the recent Supreme Court decision in the Damache case, where the search warrant provisions under section 29 of the 1939 Offences Against the State Act were found to be unconstitutional.
Cases that have reached finality and where the right to appeal has already passed are unlikely to be affected. Appellants whose appeals are yet to be heard are likewise unlikely to benefit from the ruling, unless the issue of legal access was raised at their trial and is relevant to the appeal. The point, however, will no doubt be raised and argued in cases awaiting trial before the courts or indeed possibly those that have not reached a conclusion by way of verdict or sentence.
While the decision of the Supreme Court represents a powerful restatement of the importance of the right of access to a lawyer, it does not explicitly state that this includes the right to have your lawyer present on request during Garda interviews.
In terms of the jurisprudence relied on, however, it appears that this further refinement is only a matter of time as the issue simply did not arise on the facts of the cases before the court. Other issues that will follow include the extent to which one can waive the right and what evidence will be required to satisfy a court in that regard.
Finally, while the decision dealt differently with two situations where access to a lawyer had not been afforded – interviewing, which the court found is not permitted, and the taking of at least some kinds of samples, which it found was – it remains to be determined where other matters arising in the course of the detention of a suspect might fall.
Diana Stuart is a barrister
