A recent case means gardaí can no longer interview a suspect if he asks for a lawyer until such legal advice has been obtained. Brendan Foley investigates
Supreme Court decisions, even those touching directly upon the daily duties of members, rarely have as much immediate and sweeping impact as will the recent joined cases of DPP v Gormley and DPP v White (6th March 2014). In a nutshell, members must now ensure that the questioning of a suspect who has requested a lawyer should not begin until after access to that lawyer – or at least to his/her legal advice – has been provided.
How can such an apparently straightforward decision have such sweeping ramifications? The reality is that, prior to this court ruling, members were allowed very considerable latitude in both the timing and extent of the legal advice a suspect would receive prior to interview. It is useful to outline what the previous position was, to give some flavour for the extent of changes heralded by the Gormley judgement.
Prior to Gormley, a suspect could be interviewed before their lawyer arrived at the station. A suspect could be interviewed prior to even speaking to their lawyer on the telephone. Any confessions made during these unadvised interviews were perfectly admissible in court. Furthermore, once the lawyer did arrive, he/she was not entitled to sit with their client during the questioning, but instead only allowed to have reasonable updates throughout the interview. Finally, it was not (and still isn’t) a constitutional requirement that a suspect be aware that he/she is entitled to legal advice prior to questioning.
“…the government should have known for some time that the questioning of suspects in the absence of proper legal advice could well fall afoul of the European Court of Human Rights…”
The only practice emphatically disallowed prior to Gormley was what was called ‘colourable manoeuvres.’ This phrase comes from a 2005 case, AG v O’Brien. O’Brien wanted a solicitor, but did not specify any lawyer in particular. The gardaí involved chose a solicitor far enough away that he could not possibly reach the station in the subsequent two hours. Questioning began, and O’Brien made admissions. The interview was inadmissible because of the ‘colourable manoeuvres’ employed to avoid him accessing legal advice.
Barring such manoeuvres, though, questioning before a solicitor arrives, while a solicitor waits outside, or without any solicitor at all was perfectly allowable and any resultant confessions perfectly admissible.
The court was very clear. It felt the government should have known for some time that the questioning of suspects in the absence of proper legal advice could well fall afoul of the European Court of Human Rights. This is a little unfair, given that the court itself had sanctioned and endorsed all these interview practices whenever they were challenged by the (subsequently convicted) interviewee.
Nonetheless, the present position is that a suspect cannot effectively be interviewed until after their lawyer arrives.
Of course, the court could only deal with the facts of the case before it. And there was no issue in Gormley regarding whether or not he knew he was entitled to a lawyer; he clearly knew he was so entitled, and he asked for one. What, however, if the suspect didn’t even consider whether or not a lawyer was needed? Could the member commence the interview, hear admissions, and only cease questioning once the request was made? Again, in my experience, the overwhelming majority of members carefully ensure that a suspect is aware of his right to a solicitor prior to questioning. But members, too, might omit this. The Supreme Court in Gormley suggested that if they do encounter a case with facts involving a suspect who is ignorant of their right to a lawyer, then any such admissions made would also be unconstitutional and inadmissible.
Finally, it appears that the ‘reasonable updates only’ provision – where lawyers are not allowed to sit in during questioning, but only sporadically speak to their client at undetermined intervals – might also fall afoul of any future court challenge. We may be approaching a situation similar to that of the US, with clients in custody constantly advised that ‘you don’t have to answer that’. Given the immense value in mitigation on a plea of guilty to any admissions made in custody – particularly those made without the benefit of legal advice, that would be an unfortunate development for both the State and the accused.
Brendan Foley BL is a practising barrister.