In a leading judgment issued on 6 March 2014, the Supreme Court sent the Government a clear message about the need to reform our laws to give greater protection to people questioned by An Garda Síochána.
In the case of DPP v Gormley, the Court has declared that "the entitlement not to self-incriminate incorporates an entitlement to legal advice in advance of mandatory questioning of a suspect in custody" and that "the right to a trial in due course of law encompasses a right to have early access to a lawyer after arrest and the right not be interrogated without having had an opportunity to obtain such advice. The conviction of a person wholly or significantly on the basis of evidence obtained contrary to those constitutional entitlements represents a conviction following an unfair trial process" (paragraph 9.13 of the judgment).
The Court has noted that it should have been clear to the Government for some time that reform of the law in this area is needed, bearing in mind the case law of the European Court of Human Rights and other international standards. The Supreme Court justices remark that the "possibility that Bunreacht na hÉireann [the Constitution] might properly be interpreted as conferring such a right could not, for the reasons analysed in this judgment, come as a surprise to anyone with an interest in this area, least of all the authorities" (paragraph 1.3 of the judgment).
The judgment also charts a path towards future reforms, including making provision for the presence of a lawyer during Garda questioning, in line with case law of the European Court of Human Rights in the case of Salduz and drawing upon the interpretation placed upon that case by the UK Supreme Court in the case of Cadder v the Scottish Ministers. In this connection, the Court notes that if "it be the case that the State has not, to date, organised itself in a manner sufficient to allow such questioning to take place in conformity not just with the Constitution, but also with the well-established jurisprudence of the European Court of Human Rights, then it is those who are in charge of putting such provisions in place who must accept responsibility" (paragraph 9.7 of the judgment).
Commenting on the judgment, ICCL Director Mr Mark Kelly said:
"This is an important judgment that clearly articulates that persons held by An Garda Síochána should not be questioned until they have received legal advice. It is highly significant that the Supreme Court has also drawn attention to European Court of Human Rights case law that "irretrievable harm" to the fairness of a trial can result if a person does not have a lawyer present during police questioning. The Government should heed the Supreme Court's clear call for law reform in this area, by changing the law to require that a lawyer be present when people in custody are questioned by members of An Garda Síochána."
"The Government should also act to "opt in" to the relevant European Union law that governs this area (Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in Europan arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty)" Mr Kelly concluded.