The Supreme Court has ruled that the constitutional right for criminal suspects in Garda custody to have access to a lawyer does not extend to a right to have a solicitor present in Garda station interviews. Six members of the seven-judge Supreme Court dismissed an appeal in respect of a murder conviction on the basis that no such access was given to the appellant.
The constitutional right of reasonable access to a solicitor while in Garda custody is derived from Article 38.1 of the Constitution. In Lavery v Member in Charge, Carrickmacross Garda Station the Supreme Court held that this did not include the right of a criminal suspect to have a solicitor present while being interviewed by Gardai. However, in the 2014 case DPP v Gormley and White, the Supreme Court acknowledged that this right had been recognised by the European Court of Human Rights (the ECtHR) and the US Supreme Court. In 2014, the DPP issued a practice direction advising Gardai that that, if requested, a suspect was entitled to have a solicitor present during interviews (reported on in an earlier PILA bulletin and available here).
In the instant case, the appellant, Barry Doyle was convicted in 2009 of the murder of Shane Geoghegan. Doyle confessed to the murder during his fifteenth interview in police custody. No solicitor was present during that interview. Doyle was detained for a total of 60 hours, he was interviewed for 20 hours and he had 40 minutes’ consultation with his solicitor while in custody. The Court of Appeal rejected Doyle’s appeal and it was noted that the Gardai had in fact stopped interviews to allow the appellant to consult with his solicitor.
On appeal to the Supreme Court, 6 of the 7 judges hearing the case found that there was no basis for overturning the conviction. Mr Justice O’Donnell, Mr Justice Charleton, Ms Justice Denham and Ms Justice Laffoy held that the right is one of reasonable access to a solicitor, and this did not entail a requirement have a solicitor present at interview. Mr Justice Charleton acknowledged that such a right had been recognised by the US Supreme Court in the Miranda case, but held that Ireland’s existing custodial safeguards, including the right to consultation with a solicitor prior to questioning and the video-recording of interviews, meant that the right to have a solicitor present while being interviewed was not necessary in this jurisdiction. Mr Justice O’Donnell acknowledged that that the ECtHR could be regarded as recognising the right to a solicitor during interview in the Salduz case, but distinguished it on the basis that the dispute there arose in a civil law jurisdiction, and as such was not comparable.
Mr Justice MacMenamin and Ms Justice O’Malley both indicated that they would be open to the recognition of the right in a future case, however. Mr Justice McKechnie dissented, holding that there was a right to have a solicitor present in interviews and this would allow the ground of appeal.
Click here for an analysis of DPP v Doyle.
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