Key changes to criminal law get the silent treatment
It’s the biggest change in criminal justice procedure in 30 years – and you probably haven’t heard about it
A different beat: from now on suspects detained at a Garda station are entitled to have solicitors present during their periods of questioning. photograph: brenda fitzsimons
Without any public announcement, the most significant change in criminal justice procedure in the past 30 years took place on May 7th. It took the form of a directive from the Director of Public Prosecutions to An Garda Síochána to the effect that, from now on, suspects detained at a Garda station would be entitled to have solicitors present during their questioning.
Some perspective: since the passage of the Criminal Justice Act 1984, which codified the practice of “assisting gardaí with their enquiries”, many investigations into serious crime have focused primarily on interviews with suspects under arrest at a Garda station. The passage of much criminal justice legislation in the intervening 30 years has greatly eroded the traditional right to silence.
Controversies over what was said, or not said, by suspects during interrogations, often aired at length in high-profile trials, led to the introduction of audio- and video-recording of interviews. But in the Lavery case, decided in the Supreme Court in 1999, it was ruled that suspects were not entitled to have their solicitors present during questioning. That remains the definitive legal position.
Events in neighbouring jurisdictions, led by rulings in the European Court of Human Rights, in Strasbourg, pointed inexorably towards the presence of lawyers at police station interviews as being part of the essential protections for suspects in criminal investigations, as guaranteed by the European Convention.
Since about 2008, EU law has produced a series of directives with similar effect. These developments were accepted, in the recent Supreme Court cases of Gormley and White, decided together last March, as accurately reflecting the guarantees in Articles 38 and 40 of the Constitution of the right to a fair trial “in due course of law”. Mr Justice Frank Clarke, in a lengthy ruling, made it clear the Lavery decision would not survive a challenge. The presence of solicitors throughout interviews was, therefore, an inevitable event.
This was not in any way a surprise to the State. The 3rd EU directive, adopted during Ireland’s recent presidency, contained just such a provision. Ireland opted out – at least temporarily. But quietly, a Department of Justice working group, chaired by Moling Ryan, head of the Legal Aid Board, was deliberating. Its report, published in July 2013, proceeded on the explicit assumption that the ruling in the Lavery case was living on borrowed time, and that the presence of solicitors during Garda interviews was inevitable.
The report even included budgetary costings and projections as to the additional expense to the Criminal Legal Aid scheme by the introduction of such a measure, bearing in mind most detainees would be entitled to Legal Aid. But the dry language of the report belies the dramatic changes introduced by the DPP’s quiet directive.
The right to silence, embodied in the traditional caution to a suspect, that “you are not obliged to say anything”, has been substantially eroded by the introduction of legislative provisions allowing inferences to be drawn at trial, adverse to an accused, in certain circumstances where the accused declines to answer questions in the Garda station, or fails to mention facts deemed material to their defence.
These provisions, for the most part driven by legislative developments following the Omagh bombing, have always been controversial, both as a matter of principle and because they have been difficult to operate in practice. A separate Department of Justice committee, chaired by retired judge Esmond Smyth, has reported on a proposed form of words to replace the traditional caution. There has, as yet, been no decision as to how to proceed.
Opportunity to consult
For the moment, in practice, the law requires suspects to be afforded an opportunity to consult with their solicitors prior to gardaí invoking the inferences provisions.
Along with this goes a requirement, which has emerged through practice as distinct from being part of the legal framework, that gardaí disclose certain aspects of the evidence to the suspect’s solicitor, to enable the detainee to be properly advised.
No rules govern what must be disclosed, and gardaí vary greatly in what they are prepared to say. In the new environment, this unregulated situation will lead to real problems, and to the likelihood of solicitors becoming witnesses at trial as to what advice they gave suspects, and the reasons for that advice.
Even in England, which since 1984 has had a highly formalised set of rules – under the Police and Criminal Evidence Act, (PACE) – disclosure issues are frequently controversial, as investigators try to maintain a strategic advantage over the suspect. Both gardaí and solicitors have been left exposed in this legislative vacuum.
Payment for solicitors to spend long hours at a station has yet to be finalised. The Department of Justice issued a circular to the Law Society the day after the DPP’s directive, setting out what they thought to be the role and function of solicitors at the station – a direct lift from PACE. A separate document indicating payment arrangements is to be finalised shortly. The Moling Ryan report posited that, given the open-ended time commitment required, solicitors should be remunerated by reference to a modest hourly rate.
As to how solicitors will cope with the new arrangements, this is another question. Arrests and detentions are not conducted, in most cases, for the convenience of suspects’ diaries, much less those of solicitors. Small firms will struggle to rearrange, at almost no notice, staff diaries to cope with an unexpected detention, together with existing court commitments, appointments, paperwork, and the daily routine.
Considerable delays may occur, particularly outside Dublin, in getting a solicitor who is willing to make themselves available at short notice for a possibly open-ended commitment away from their desk, bearing in mind detentions can run into a second or third day, the maximum being seven. What is a financial opportunity may become a logistical nightmare.
The Supreme Court warned, in Gormley and White, of the need for the State to “organise its systems” to provide for the ready availability of advice for arrested persons. In England, a comprehensive duty solicitor network has long been established, with specific accreditation systems for those willing to hold themselves out as competent to advise in what Mr Justice Adrian Hardiman described as a “strikingly complex and specialist field”.
The court was also mindful of the fact delays in securing the attendance of a solicitor could be a reason for some suspects to decline the services of an adviser, notwithstanding Mr Justice Hardiman’s caution as to the potential momentousness of decisions to be made during detention.
Protection for all
The persons most directly affected by the new regime are, of course, suspects. This development should not, however, be seen as some sort of criminals’ charter.
If evidence exists against an individual that they have offended, it is proper that a legal regime exists for their arrest and detention, described in graphic terms in by Mr Justice Clarke in Gormley and White as a coercive process, so as to have that evidence put to them. In turn, it is equally proper that they are afforded legal representation to assist in that coercive process.
Furthermore, the presence of a solicitor should have the effect of minimising allegations against gardaí of mistreatment and is therefore a layer of protection for all.
It is perhaps regrettable that, despite the inevitability of this process, it has so suddenly been commenced, with little provision for training and other preparation that might have eased the transition for the main professionals involved, gardaí and solicitors. Hopefully with time, the relevant issues can be attended to and the inevitable improvements will fall into place.
The new regime has been long overdue.
Dara Robinson is a solicitor with Garrett Sheehan and Partners