Garda tapings could lead to an avalanche of legal challenges to convictions

Opinion: Were conversations between suspects and solicitors recorded?

‘The right of detained people to have private consultations with their solicitors is as fundamental a due process right as there is under Irish constitutional law’. Photograph: Alan Betson

‘The right of detained people to have private consultations with their solicitors is as fundamental a due process right as there is under Irish constitutional law’. Photograph: Alan Betson

Thu, Mar 27, 2014, 01:01

Right now we know little about the extent to which telephone conversations were recorded in Garda stations or the nature of the conversations that were typically recorded. Some calls may legitimately be recorded and there can scarcely be any controversy about those. We do, admittedly, have reason to be concerned that people who contacted Garda stations about particularly personal matters may have had their calls recorded without warning or consent. That would certainly have been a breach of their right to privacy, a right which all of us are entitled when dealing with State agencies in the absence of a compelling reason to the contrary.

From a criminal justice perspective, the real nightmare scenario is the possibility that telephone conversations between suspects held for questioning and their solicitors may have been recorded. Any firm evidence of such a practice, even in isolated cases, could have devastating consequences. It would immediately engender a suspicion, well-founded or otherwise, that such conversations were being recorded on a more widespread basis. Many people convicted and sentenced over the past 30 years might well wonder if their conviction was somehow facilitated by Garda recordings of conversations which they had with their solicitors while in custody.

It is important to clarify at the outset why it is so important that suspects detained for questioning should be able to communicate in absolute confidence with their legal advisers. For a person who has never before been arrested, the experience of being detained in a Garda station for questioning can be intimidating, traumatic and stressful.

Many who have found themselves in this position have later said that they would have been willing to confess to anything just in order to regain their liberty. Once the gardaí secure a confession or admission, they will naturally make every effort to use it as part of the prosecution case at trial. The statement in question will generally be admissible unless shown to be involuntary or to have obtained in a manifestly oppressive manner or to have resulted from a breach of the defendant’s constitutional rights.

So, it is imperative that a detainee should have meaningful access to legal advice before being questioned by the gardaí. Ironically, during the past few weeks, there has been a major constitutional development in this area. Almost 25 years ago in the Healy case, the Supreme Court had held that the right of access to a lawyer while in custody was so fundamental that it should be regarded as a constitutional rather than merely a legal right. However, just a few weeks ago, in the Gormley case, the Supreme Court took another important step by holding that once a detained person asks to consult a solicitor, he should not be questioned until he has had a consultation. In reaching this decision the court was influenced by certain key decisions of the European Court of Human Rights and by developments in other countries with constitutional frameworks similar to ours.

In fact, detainees will probably soon be constitutionally entitled to have a lawyer present while being questioned. Irish courts have been equally insistent that detained people have the right to consult their lawyers in private. This means, as a number of leading decisions have held, that the consultation, whether in person or over the phone, should take place out of the hearing of members of the Garda Síochána (even though it may sometimes be within their sight). In one leading case dating from 1997, the Court of Criminal Appeal held that irrespective of whether the particular detainee had a constitutional right to phone a solicitor, once the call was made, he had a constitutional right to conduct the conversation in private.

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