Supreme Court ruling on right to lawyer will impact Garda inquiries

A unanimous Supreme Court ruling today has very significant implications for Garda investigations and prosecutions.

The judgement quashed an attempted rape conviction on grounds that suspects who request a lawyer cannot be questioned by gardaí until they get that legal advice.

On those grounds, the court today overturned the 2008 conviction of Raymond Gormley (29), Glenwood Park, Letterkenny, who was jailed for six years for the attempted rape of a mother-of-two as she slept in her bedroom on April 24th 2005.

The five judge court found that statements made by Mr Gormley to gardaí, after he had requested a solicitor but before that solicitor arrived, were inadmissible evidence.

However, in a separate but linked case, the court unanimously rejected arguments that forensic samples taken from another man, Craig White, after he sought a solicitor and prior to that solicitor's arrival,  were inadmissible evidence. White, of O'Devaney Gardens, Dublin, is serving a life sentence for the murder of Noel Roche (27) at Clontarf Road, Dublin, in November 2005 and his conviction stands following today's ruling.

Both appeals concerned the issue of whether evidence obtained by gardaí at a time after a suspect in custody has requested legal advice, but before that advice has become available, can be regarded as admissible.

Giving the court's judgment on both cases, Mr Justice Frank Clarke said it was important to stress that issues of this type have been the subject of legal debate in many jurisdictions for some time.

The fact these issues would ultimately come to be considered as a matter of Irish constitutional law “can have come as no surprise”, he said.

The position in Mr Gormley’s case was that his interrogation began while the arrival of s solicitor was being awaited while the facts in Mr White’s case were that forensic samples were taken while efforts were being made to secure the attendance of a solicitor who had been contacted to advise Mr White.

The distinction between the two cases was that the evidence obtained in Gormley’s case was as a result of statements made during interrogation whereas the evidence in Mr White’s case was objective forensic evidence.

Under existing Irish law, the position to date had been, while a constitutional right to legal advice in custody has been recognised, it has not yet been held that evidence-gathering must be suspended while legal advice becomes available, he said.

However, the case law of the European Court of Human Rights case makes clear the conviction of a person by placing significant reliance on admissions made during questioning was impermissible, he said.

The overall picture from other jurisdictions with constitutional and legal regimes similar to here makes clear that questioning is required to cease after a request for a lawyer has been made and their advice becomes available, he said.

The main issue in the two cases was whether the right to fair process, which traces back to a 1976 case (State Healy v Donoghue), includes a right to have legal advice, at least where requested, before evidence is compulsorily taken in custody by means of questioning or the taking of forensic samples, he said.

In Mr Gormley’s case, he was entitled to legal advice before being questioned, the judge ruled. On that basis, the right to fair process recognised by the Irish Constitution was similar to those recognised in the ECHR and other constitutional regimes similar to here.

Further questions related to the precise parameters of that right would have to be addressed in further appropriate cases, including questions concerning what actions a suspect must take to invoke the right to legal advice prior to questioning and the circumstances in which such rights may be waived.

In Mr White’s case, there was no constitutional entitlement to have legal advice before the taking of objective forensic samples in a minimally obtrusive way, provided the law requires or permits the samples to be taken and no genuine choice exists for the suspect such as would reasonably require legal advice.

In his concurring judgment, Mr Justice Adrian Hardiman said the solicitors nominated by both appellants had attended "with remarkable promptitude" at "odd or unusual" times of the day and, in one case, on a Sunday.

Noting that suspects are often arrested here early in the morning, he said a solicitor is unlikely to be in their office at 6 or 7am awaiting a call from a Garda station. It was a direct and predictable result of early morning arrests that some hours could elapse before a solicitor might arrive and this situation may trigger the need for the State to “organise its systems”.

While it was at least prima facie a matter for the legislature to provide for the time and manner of a person’s arrest and detention, it is essential these matters be regulated to vindicate the right to legal advice, he stressed.