US-style ‘Miranda’ approach moves a step closer with key judgments
Two Supreme Court decisions will have implications for the Garda and the legislature
The advent here of the US Miranda approach to access to a lawyer for an arrested person moved a step closer as a result of a landmark Supreme Court judgment earlier this month.
The judgment dealt with two appeals from the Court of Criminal Appeal which raised essentially the same issue: the question of what happens when a person in custody seeks to consult a solicitor but gardaí proceed to deal with them before the solicitor arrives.
Despite the similarities, two outcomes occurred for the appellants concerned. In one, the ruling resulted in the appeal of a Donegal man for attempted rape being allowed because he was convicted “substantially on the basis of admission evidence made during interrogation in custody during a period after he had requested the presence of a solicitor and before that solicitor had arrived to advise him”.
In contrast, the other appeal in which the appellant was convicted of murder failed, although he, too, had sought access to a solicitor but before the solicitor arrived, gardaí had proceeded to obtain a buccal swab from him for DNA comparison purposes. The court distinguished his circumstances because of the objective nature of the evidence obtained from him and also because he was “legally obliged to provide those samples and same were taken in an unobtrusive way”.
The judgment is firmly rooted in a more developed interpretation of domestic Irish law and in particular the Constitution and the right to a trial “in due course of law” provided for in Article 38.1. However, the analysis of the right engaged in by the court betrays a more international and indeed continental influence.
In the judgment of the court, delivered by Mr Justice Frank Clarke and with which the four other judges agreed (but with Mr Justice Adrian Hardiman delivering a separate concurring judgment), there is a wide- ranging survey of the origin and rationale of the right on the world stage. It began with the famous Miranda decision of the US Supreme Court in 1966 and drew on developments since then in jurisdictions as far apart as Canada and New Zealand, as well as the more recent European Court of Human Rights decisions closer to home.
Before the judgment, the right here was defined as being one of “reasonable access”, a concept which in the view of many commentators left much to the discretion of gardaí and allowed far too much room for divergence and argument over what was supposed to be a principle.
After all, what was “reasonable access” at 3pm on a Monday in Dublin could be (and as was so found in this case) a very different matter from “reasonable access” at 3pm on a Sunday afternoon in Donegal.