Right to Legal Advice in Custody

Supreme-Court-Ireland A recent decision of the Supreme Court has important implications for the manner in which evidence gathered by Gardaí during questioning and the right to legal advice in custody. In the case of DPP v Gormley and DPP v White, the question arose (amongst others) as to whether statements made by a person in custody to Gardaí after that person had requested legal advice from a solicitor, but before the solicitor had arrived at the Garda station and had given legal advice, could be admissible as evidence against that person. The Supreme Court looked at several international examples as to what is the current norm in criminal trials as to whether such statements would be allowed, or whether a right to legal advice would preclude such statements being admitted as evidence against that person. The Court also looked at the state of Irish law. The Court found that the situation in Irish law was that as long as the Gardaí had made reasonable efforts to contact and obtain a solicitor once a person had requested one they could continue with the questioning of a person. Any statements made by that person before the solicitor arrived and gave advice could be used against that person. The Court looked at the European Convention on Human Rights where the right against self-incrimination was guaranteed unless a person waived that right. The Convention was breached where a person was not allowed the benefit of legal advice when requested prior to questioning. The Court looked at several jurisdictions including the United States (where the Miranda case clarified a person’s right against self incrimination and to legal advice, also to be informed by police of these protections), Canada and New Zealand. In these jurisdictions it was an entitlement not to to be interrogated after legal advice had been requested and before a solicitor/lawyer had give legal advice. If questioning was allowed to continue after it was requested and before legal advice was given, a person’s Constitutional rights would be diluted. A person, the Court stated, was entitled to trial in due course of law according to the Constitution. This may not affect the manner in which Gardaí gather evidence in general. However once a person has been arrested and has liberty denied for the purposes of questioning to gather evidence against that person, it is intimately connected with the trial itself and the person’s Constitutional protections shall apply. Fairness of process must apply from the time of arrest. What the case means for those accused of criminal offences is that once a person requests to see their solicitor while in custody (usually a Garda Station) Gardaí should stop questioning that person and go about providing that person with a solicitor. Should they continue questioning that person before the solicitor gives legal advice, anything said by that person prior to the solicitor’s advice would be inadmissible at a trial. This case moves Ireland further into line with international norms of criminal procedure and the rights of an accused person in custody. It may have an effect on cases which are currently in the Courts. It may also have an effect on convicted persons who had 1.) requested legal advice, 2.) were questioned after requesting a solicitor but prior to the solicitor arriving and 3.) the statements made in that time were used as evidence against that person. This would only apply however if that person objected to the evidence on these grounds during trial. The would also appear to bring the possibility of a right to have a solicitor present at all times during questioning of a person by Gardaí one step closer, as is the norm in many jurisdictions. The full decision is available here

Supreme Court Rules in ‘Right to Die’ Case

The Supreme Court has recently ruled in a high profile 'Right to Die' case. The case involved a retired lecturer, Marie Fleming, who is terminally ill due to multiple sclerosis. The Court ruled that while suicide is no longer a criminal offence in Ireland, that did not mean that a Constitutional right to take one's own life existed. It further stated thet Ms Fleming did not have the right to assisted sucide under the pricnipal of equal treatment. Ms Fleming was appealing a High Court decision which refused to grant orders which would alow somone to lawfully help her die at a time of her choosing.

Strasbourg Court Rules Against Ireland for Delaying Criminal Prosecution by over 13 years

The European Court of Human Rights has just delivered an important decision rebuking Ireland for violating the right of a suspect to a trial within "a reasonable time." In the case of O v Ireland, a man waited 13 years and 7 months until he was eventually acquitted in a jury trial. In those 13 years and 7 months, there were two aborted jury trials and a lengthy dispute over the availability of psychiatric records and witnesses. The Strasbourg Court ruled that this period of time was "excessive" and a violation of Article 6 of the European Convention of Human Rights. However, this is not the first time that the European Court of Human Rights ruled that Ireland breached the Article 6 right to a fair trial within a reasonable time. The Strasbourg Court specifically referred to Ireland's past record in Barry v Ireland and its recent Grand Chamber decision on 10 September 2010 in McFarlane v Ireland. It concluded that Ireland was once again in breach of its obligations to ensure trials against suspects moved speedily.

The case of O v Ireland raised some very striking and controversial issues. How do you remedy a breach of human rights? The man had argued that he was entitled to an order stopping any trial because the delay was so very long. Ireland had argued that the man should have sought damages in an Irish court but that his trial should proceed. This is not a very attractive argument. Are human rights subject to a price tag? In the wrong hands, a European State could breach human rights in the full knowledge that the taxpayer would ultimately fund the breach of human rights with a sum of money. The European Court of Human Rights rejected this argument and concluded that damages were not "an effective remedy."

Most reasonable people agree that waiting 13 years and 7 months for a trial is far too long. Lawyers are familiar with the adage that 'justice delayed is justice denied.' However, we asked Michael Dillon BL who was counsel in the case what this actually means. Why is justice denied if it is delayed? With the passage of too much time, crucial witnesses may die or disappear as they did in O v Ireland. Witnesses may become unavailable to prove a defence alibi due to the vagueness or the imprecision of their recollection. Witnesses who are available could have faulty or unreliable memories. Indeed, loss of memory does not always reveal itself as the potent problem that it is to the guarantee of a fair trial. A lengthy trial also affects the suspect in a variety of ways. The suspect may have lost his or her liberty in lengthy pre-trial detention. He or she lives with a sense of uncertainty together with the social stigmatisation of being an accused. This typically causes further significant pressure on family and social life which is exacerbated by the public nature of most criminal proceedings. In some cases, this stress and anxiety can develop into a psychiatric condition. A criminal suspect may also have incurred financial costs through the loss of work hours and legal costs if denied legal aid.

Finally, it is important to remember that it is a cornerstone of the criminal justice system that a person is innocent until proven guilty of a criminal charge. The right to a trial within a reasonable time guaranteed by the European Convention of Human Rights means that innocent people should not wait excessively before that cloud of suspicion is removed.

The European Court of Human Rights has no power to order Ireland to stop a jury trial. It awards damages for a breach of human rights. The process of bringing a case to Strasbourg results in a money award. Mr. O submitted his application to the Strasbourg Court in 2007 but while he awaited this decision vindicating his human rights, his jury trial took place in 2010. What would have happened had the Strasbourg Court reached its decision prior to the jury trial? Would the prosecution have set down the jury trial notwithstanding the breach of human rights? How would an Irish Court have dealt with the Strasbourg case in the very trial in which Strasbourg has ruled that Ireland has breached human rights and ruled that damages are not effective? Perhaps the answers to these vital questions will be provided another day.