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

About the author: Pádraig Murray