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

Equality Tribunal Award

Case Study James Watters & Co Solicitors recently secured a substantial Equality Tribunal award for a client in the an employment law and equality law matter. Our client worked in retail. In or about May 2010 it was alleged that a customer was racially abusive towards her. Our client was so upset by the abuse she reported it to the Gardaí. The Gardaí contacted the person who had allegedly abused our client but she denied it. Our client told the Gardaí she did not wish to pursue the matter further. The following morning our client was then called into a meeting by her employer (the ‘Respondent’); he seemed annoyed that the matter had been reported to the Gardaí. Following the meeting she was informed that she was being transferred to another location. Our client explained that this was not convenient for her as she had a small child; however she was told that this was not her employer’s concern and her presence in the shop was affecting business. On the first day in the new location she was told by her manager that a customer had complained about her and that she would be put to do more menial work. Our client decided to leave the job and managed to get alternative employment elsewhere. After two weeks in the new job her new employer asked her if she had been working in the respondents business. She told him that she had. The next day she received a text from her new employer to say there were no hours for her and he would let her go. Our client engaged James Watters & Co Solicitors to help her resolve her employment law and equality law issues. The Equality Officer made a finding against the old employer. The Equality Tribunal found that our client had been discriminated against on the basis of her race, colour, nationality or ethnic or national origins. It was also found that she was the victim of harassment and her treatment following her making the complaint amounted to victimisation. As a result of making these findings the Equality Officer made the following award: • €14,000 in compensation for the distress caused by the discrimination and constructive dismissal; • €20,000 in compensation for the distress caused by victimisation. The full decision is available at: http://www.equalitytribunal.ie/en/Cases/2013/December/DEC-E2013-193.html If you have any employment law or equality law issues call Watters Solicitors at 01-872 4717

Ireland – Third Lowest European Rate for Granting Asylum

From the Irish Refugee Council: The latest European statistics on granting asylum show that Ireland has the third lowest The Irish Refugee Council welcomes the improvement in acceptance rates at first instance, but expresses concern at the continuing below average rate of acceptance in Ireland. 10% of cases were granted status at first instance and just 6.8% were successful at appeal. The total percentage of positive decisions was 8.3% compared with 34% in Portugal, 15% in Spain and 39% in the UK. Only Greece at 4.8%, Cyprus (5%) and Luxembourg (1.7%) had lower acceptance rates. Sue Conlan, CEO of the Irish Refugee Council, says: “The continuing low numbers of grants of refugee status or subsidiary protection in Ireland, which leads to the huge delays, show that there are serious deficiencies in the decision making processes. In particular, the statistics of 6.8% positive decisions at appeals bear out the severe criticisms of the refugee appeal body, the Refugee Appeal Tribunal, by the superior courts in recent months. “These deficiencies, which are at the root cause of the delays in the system, will not be remedied without significant reforms, including providing adequate legal advice for applicants and overhauling the appeal body. Neither of which are contained in the proposed the Immigration, Residence and Protection Bill.”

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.

Damache Case Update

In relation to the recent blog regarding the Damache v DPP [2012] decision and search warrants, as expected the effect on already decided cases will likely be minimal.

In DPP v Thomas Hughes [2012] (7 July 2012) a convicted person challenged his conviction on the basis that evidence used to convict him had been obtained under legislation which had subsequently been found unconstitutional in the Damache case.

The Court of Criminal Appeal rejected the applicant's appeal on the basis (amongst other reasons) that he had pleaded guilty during his trial. The State did not have to rely on the evidence which it had obtained by the means which were subsequently found unconstitutional.

This is in line with previous decisions such as the high profile decision of C.C. v Ireland [2006] where a convicted person sought to have the decision overturned following a subsequent finding that the legislation outlining the offence was inconsistent with the Constitution. The court found that as the accused had not sought to challenge the provision in his previous trial he was not entitled to rely on it at a later stage

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