Yesterday the Supreme Court quashed Raymond Gormley’s conviction for attempted rape, due to the absence of legal advice prior to Garda questioning of him.
The critical issue before the Supreme Court in People (DPP) v Gormley and People (DPP) v White was whether an arrested person is entitled to legal advice prior to the commencement of any interrogation, and, in relation to the appeal of Craig White, prior to the taking of bodily samples for forensic examination.
As Mr Justice Clarke noted wryly, the possibility that Bunreacht na hÉireann might be interpreted as conferring such a right could not “come as a surprise to anyone with an interest in this area, least of all the authorities” [1.3]. Indeed, as I have blogged about previously, and as the Supreme Court noted in its judgment, this issue was grappled with by the UK Supreme Court in 2010 in Cadder v Her Majesty’s Advocate, prompting legislative reform in Scotland. Moreover, the European Committee for the Prevention of Torture has recommended in numerous reports on Ireland that the right of access to a lawyer should include the right to a lawyer throughout interrogation, and most recently asked for information for the current thinking of Irish authorities on this issue, given recent jurisprudence of the ECHR. The Supreme Court has now forced the hand of the Oireachtas.
While the right of access a lawyer is constitutionally recognised, prior to yesterday’s decision it comprised a right of reasonable access and had been interpreted quite restrictively: Gardaí could interrogate a suspect before the solicitor’s arrival as long as they were making bona fide attempts to provide a lawyer, and they were not obliged to defer arrest until such time as the solicitor was likely to be available (People (DPP) v Buck  2 IR 268). However, choosing a solicitor in circumstances where the Gardaí knew or ought to have known that there would be a substantial delay rendered detention unlawful and thus the evidence obtained as inadmissible, on the ground that there was a failure to provide a solicitor within a reasonable time (O’Brien v DPP  2 IR 206). So, as Clarke J emphasised in People (DPP) v Gormley and People (DPP) v White at [5.7]: “To date the jurisprudence has not gone so far … as to require that advice from a requested solicitor actually be made available to the relevant suspect prior to questioning or the taking of samples. However, that is the question which falls squarely for decision in these cases.”
In addition to assessing extant domestic case law, the Supreme Court cited ECHR jurisprudence, which demonstrates clearly that “[t]he rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.” (Salduz v Turkey ). Case law from other common law jurisdictions was also cited, supporting the ECtHR’s position.
It’s worth noting that while Irish case law previously regarded the right as a matter that principally affects the constitutional lawfulness of custody, argument in this case reframed it so as to form part of the constitutional right to a trial in due course of law (Article 38.1). This approach was accepted by the Supreme Court, which stressed the nature of Bunreacht na hÉireann as a living document, thereby facilitating this novel and more expansive interpretation. Clarke J emphasised the significance of arrest as demarcating what he called the “pure investigative stage” from the process after arrest where liberty is deprived and which is “intimately connected with a potential criminal trial” [8.8]. This means that the fundamental requirement of basic fairness applies from the time of arrest. Moreover, the entitlement not to self-incriminate was held to incorporate an entitlement to legal advice in advance of mandatory questioning of a suspect in custody.
The focus on arrest is significant, as this may preclude challenges to police questioning without legal advice such as arose in Ambrose v Harris  UKSC 53 (one of the “Sons of Cadder“). Here the UK Supreme Court considered whether the right accrued before a person was taken into police custody, and rejected the claim that it applied when questioning took place on the street. Nonetheless, the parameters of the right and how it will be operationalised need to be defined and detailed in legislation.
No attempt was made in the judgment to articulate any possible exceptions to the right to legal advice before interrogation, though it was emphasised that the right is “an important constitutional entitlement of high legal value”, and so any exceptions would need to involve “a pressing and compelling need to protect other major constitutional rights such as the right to life” [9.14]. Moreover, the Court declined to consider if and when this right could be waived, given that Gormley had expressly requested a lawyer. Such matters must be grappled with by the Oireachtas.
Viewing the right of access as a dimension of the right against self-incrimination was critical to the rejection of White’s appeal. Reference was made to ECHR and other international jurisprudence that distinguishes between the obtaining of oral admissions during interrogation on the one hand and the collection of forensic evidence that exists independently “of the will of the suspect” on the other (see Saunders v UK ). For this reason the Court concluded that, while of course the legality and manner of sample collection is crucial, the “due course of law” provisions of Bunreacht na hÉireann do not preclude the collection of “objective forensic samples” from a suspect in custody before the requested legal advice becomes available.
In terms of compliance with the letter and spirit of international human rights jurisprudence, this judgment is to be welcomed. The right of legal advice seeks to bring some degree of parity to the relationship between the State and the arrested person; prior to yesterday the right was so circumscribed as to render it of limited practical effect. As Hardiman J noted in his separate concurring judgment, the conditions in police cells may undermine the resolution of an arrested person to wait for legal advice. Moreover, the lengthy detention periods permitted in Ireland (a max of 168 hours for drug trafficking and other serious offences when compared to Scotland’s 24 hours, for example) and the ability to draw adverse inferences from silence indicate the importance of a robust means of protection for the individual, to offset the inherent compulsion and imbalance of power in police custody and interrogation.