RIGHT TO HAVE A SOLICITOR PRESENT WHILE BEING QUESTIONED IN GARDA CUSTODY

INTERNATIONAL POSITION

Most of us would be familiar with American crime programmes such as CSI and Law and Order . Often during the course of these programmes we see suspects being arrested, taken into custody and invariably sitting through their police interrogations with their lawyers by their side.

This is the situation in the US.  It is almost fifty years  since  the United States Supreme Court  case of Miranda –v- The State of Arizona. In that case it was decided that  persons in custody have a right  amongst other things, to have counsel (solicitor ) present at the interrogation, as that is indispensable to the protection of fifth amendment privilege ( against self incrimination)

Over the course of the next half century  most  jurisdictions have followed suit. Most recently the Scottish Government brought in legislation giving suspects in detention the right to legal advice before and during questioning as a result of the UK Supreme Court decision of Cadder –v- HM Advocate.

IRISH POSITION

For decades Ireland has been swimming against the tide in this regard.  However it seems that all this is about to change.  Earlier this month the access to a solicitor reform came into effect. The effect of this is that suspects in custody will have the right to have a solicitor present while being questioned in garda custody.

 This seismic shift has occurred as a direct result of the decisions in the March 2014  Supreme Court Cases of  DPP –v- Gormley  and  DPP –v- White.

The decision in those cases did not go so far as to state that a suspect has a right to have a solicitor present while being questioned in Garda Custody, as the issue didn’t arise. However, the Supreme Court strongly suggested that  the  right to legal advice in the future may be held to include the right to have a lawyer present during questioning.

WELCOME DEVELOPMENT

This development is most welcome and finally brings Ireland into line with the standard of our nearest neighbour and the rest of Europe.  It is difficult to know how the provision of the service will evolve or how much it will cost the State. However, there can be no doubt but that it is an important step in the right direction.