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“ Should there be a statutory obligation upon the Gardaí to ensure a detainee is making a “deliberate and conscious” decision to waive their right to access to a solicitor? ”

Does Ireland need to do more to protect the rights of persons detained in Garda (police) custody?

March 03 2016

In May 2014 the Director of Public Prosecutions (DPP) advised An Garda Síochana (the Irish police) to allow a solicitor attend the Garda (police) interview of a person detained (the detainee) for questioning on suspicion of having committed a serious criminal offence. It had previously been the practice of the Gardaí to decline any request by a solicitor to attend during interview of their client.

This decision took many solicitors and the Gardaí by surprise. It was presumed, although not confirmed, that the decision was taken as a result of the Supreme Court judgment in The People (DPP) v Gormley & White. In this case the Supreme Court ruled that evidence taken from two separate detainees after they had sought legal advice but prior to receiving that advice should, in circumstances particular to these two cases, be excluded at trial. It would, therefore, appear that the decision to admit solicitors to interviews was far from a mere procedural change by the DPP, or the Minister for Justice and Equality, but in response to this particular Supreme Court judgment.

It would however appear that the Department of Justice and Equality were already considering allowing solicitors into Garda interviews. In 2013 the Department published a report looking primarily at the cost to the exchequer if solicitors were allowed to attend at the Garda interview. The report, entitled “The Working Group to Advise on a System Providing for the Presence of a Legal Representative During Garda Interview” published in July 2013 was a response by the Department to the EU Directive on Access to a Lawyer in Criminal Proceedings. It is worth noting that although a representative of the Law Society took part in the Working Group, the Department did not seek the approval of the Law Society before the report was published.

Among its findings, the report disclosed the fact that for every five persons arrested and detained for questioning one detainee decline legal advice. This is a staggering figure and could arguably be the starting point for all discussions by solicitors and public interest lobby groups who wish to advance the rights of persons detained for questioning in Ireland. Is it acceptable that only one in five people detained for questioning submit to their detention and questioning without getting independent legal advice? Is there anything that can be done to increase awareness of the rights of detainees? Should there be a statutory obligation upon the Gardaí to ensure a detainee is making a “deliberate and conscious” decision to waive their right to access to a solicitor?

Perhaps a more useful starting point of any discussion regarding the waiver of legal advice at the Garda station is to conduct a review of the legal structures that currently protect the detainee. At present legal protection for the detainee is provided for within the Treatment of Persons in Custody (Regulations) Statutory Instrument 1987/119 (the Regulations). Section 8 of the Regulations obliges the Member in Charge (police officer in charge of the station at the time of interview) to give the detainee a notice of rights informing them of their right to have access to a solicitor prior to being interviewed. It is important to note that the Regulations do not impose any statutory obligation on the Member in Charge to be satisfied that the detainee understands their right to access to a solicitor. Should there be an obligation on the detainee who declines assistance to sign a specific waiver of their right to a solicitor?

Notwithstanding the limitations of the Regulations a number of very significant judgments of the Supreme Court - DPP v Madden, DPP V Healy, DPP v Buck and DPP v Gormley & White - ensure that the right of access to a solicitor has constitutional protection. Moreover, the comments of Clarke J. in Gormley & White are supportive of the suggestion that there is an increased obligation on the Gardaí to engage in a meaningful way with the rights of the detainee;

“it remains, of course, the case that the suspect is entitled to reasonable access to a lawyer. The authorities in whose custody the suspect is held are required to take reasonable steps to facilitate such access. What consequences may flow, in respect of the admissibility of forensic evidence taken from a suspect where such reasonable steps are not taken, is a matter to be decided in a case where those circumstances arise”

The question remaining for policy makers, practitioners and the Gardaí is whether or not the judgment in Gormley & White could become the basis for recognising that the Member in Charge must do more than merely provide the detainee with their notice of rights. It can be argued that there exists a positive obligation upon the Member in Charge to be satisfied that the detainee is making an informed decision to waive their right to access a solicitor. Indeed, in Gormley & White Clarke J went so far as to suggest that the issue of entitlement to prior legal advice may require specific regulation. Given the emerging jurisprudence, the EU Directive and the DPPs own direction on the matter does the State need more evidence that the Treatment of Persons in Custody Regulations may no longer meet the needs of the detainee or the legal obligations of the State? If so, the Supreme Court may have left the door open to further legal challenges to determine how the practical application of the rights of the detainee are to be interpreted.

Author: Matthew Kenny is the Principal of Matthew Kenny Solicitor which is a new start-up solicitors practice, working primarily in the area of criminal defence and public interest law. He was previously a Partner in Sheehan & Partners Solicitors until December 2015 having joined them in 2003. At present he is working with The Irish Council of Civil Liberties on their High Level Expert Working Group on providing legal advice in a Garda Station. In 2014 he received the Free Legal Advice Centre (FLAC) Gold Medal for contributions to free legal advice to the organisation and regularly assists private clients and non governmental agencies who require free legal advice.Matthew was chairperson of the Dublin Solicitor Bar Association (DSBA) Criminal Law Committee in 2013-2014 and is a member of the DSBA Council. He is on the Public Interest Law Committee of the DSBA for 2016.


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