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.