Garda interviews.

Procrastastudy

My understanding of these is that they video tape these but they still write everything down making the process a bit nuts.

Garda says something writes it down...

Suspect says some thing it gets written down... etcetera.

Someone told me much of what's said in a lot of cases isn't written down and what's on the audio bears little resemblance to the to actual interview memo.

I suppose my question is why? Why not just tape the thing and then transcribe it?

JackieBurke

That would be logical but I think you will find there is some act dating back to the '20's stating that there must be a contemporaneous record made at the time of the interview.

Procrastastudy

JackieBurke wrote: »

That would be logical but I think you will find there is some act dating back to the '20's stating that there must be a contemporaneous record made at the time of the interview.

Good point. The video wouldn't be contemporaneous though?

Marcusm

IS there a video in most Garda interview rooms? I thought that there were few with recording facilities which together with the lack of entitlement to have anyone else present gives rise to the POTENTIAL (not the actuality) of all the misconduct of which Ireland accused Britain during the 70s and 80s. Frankly, following Nicky Kelly/Sallins, it's surprising that it was not enacted by 1990.

Procrastastudy

Marcusm wrote: »

IS there a video in most Garda interview rooms? I thought that there were few with recording facilities which together with the lack of entitlement to have anyone else present gives rise to the POTENTIAL (not the actuality) of all the misconduct of which Ireland accused Britain during the 70s and 80s. Frankly, following Nicky Kelly/Sallins, it's surprising that it was not enacted by 1990.

As far as I know they all do now and if they aren't working the interview is moved to another garda station. I'm more than open to correction this is all third hand.

JackieBurke

Marcusm wrote: »

IS there a video in most Garda interview rooms? I thought that there were few with recording facilities which together with the lack of entitlement to have anyone else present gives rise to the POTENTIAL (not the actuality) of all the misconduct of which Ireland accused Britain during the 70s and 80s. Frankly, following Nicky Kelly/Sallins, it's surprising that it was not enacted by 1990.

So no solicitors allowed?

Procrastastudy

JackieBurke wrote: »

So no solicitors allowed?

At garda discretion. Generally (from what I'm told) not allowed in the interview room while interview is ongoing.

ResearchWill

The way the system is set up there are two (it may be three) tapes in the camera. At end of interview they are sealed, one for AGS one for the accused, he will only get a copy after applying to court for it.

There is no transcription service from the video tape. So the old system of written memo, which is then typed up at a later stage.

It s vital for defence solicitor and or barrister to watch the video tape and check it against the memo. It's the most boring job on the planet, the audio quality is usually very bad, and its getting near impossible to get bloody video recorders so you can watch the tape. Hopefully the system will be changed to some form of digital video and Audi recording with full from audio transcription service.

SB2013

All interviews are done on tapes. It's three tapes. One is sealed and the seal is signed by the interviewee. The memo will unlikely be an exact transcription which is why the full thing is read over and the interviewee given a chance to address any errors that he believes are in it. He also signs to say it is a true reflection of the interview.

The reason for both tapes and memo is the judges rules. They state that anything an accused says will be taken down in writing. This was to be changed under the rule of McDowell but it never happened. Not everything said in the interview will be written down exactly either, only stuff relevent to the interview/case.

valleyoftheunos

Heard some stories from Colleagues that there are still a few Stations with out videos and that it still happens the odd time that detainees are interviewed in these stations when there is no obvious reason to bring them there, such as driving past 3 other stations to get there.

I'm open to correction on that one though.

No solicitors in the interview room at all though, and when consulting with client AGS must be able to see both parties (but not necessarily hear them). All that "Don't answer that question" Stuff is the preserve of the US and TV Cop shows.

MonkstownHoop

sure they are flat out asking the public what crimes they committed on message boards now

JackieBurke

I am sure you can decline to answer any questions posed.

valleyoftheunos

JackieBurke wrote: »

I am sure you can decline to answer any questions posed.

you can of course but your lawyer wont be there to tell you not to!

ResearchWill

JackieBurke wrote: »

I am sure you can decline to answer any questions posed.

Not only can you you should only answer all questions with the following mantra, "On the advice of my solicitor I refuse to answer that question."

If a suspect is later before a court and interview where no questions are answered, there is as far as the jury is concerned no interview. If any question is answered that question and any answer can and more than likely be put before the jury.

Mr. Incognito

You do not have to answer anything but your silence can be put to the jury who are entitled to draw inferences from it

Your solicitor is not entitled to be present when you are intereviewed

Notes are required as they need to be evidenced in court and contempareous accounts must be shown as the Guard will be cross examined by the defence Barrister and god help him if he doesn't have it written down as Counsel will tear him apart

The law is on the defence's side.

belcampprisoner

say notthing,then say nothing,
http://www.nytimes.com/2013/02/03/opinion/sunday/why-police-officers-lie-under-oath.html?_r=0

SB2013

ResearchWill wrote: »

Not only can you you should only answer all questions with the following mantra, "On the advice of my solicitor I refuse to answer that question."

If a suspect is later before a court and interview where no questions are answered, there is as far as the jury is concerned no interview. If any question is answered that question and any answer can and more than likely be put before the jury.

"No Comment" is easier for everyone. I hear a few solicitors give the same advice but in my opinion it should only be taken by people who are guilty. If there is a simple explanation for something then just give it. No point getting a charge because you didnt clear something up. Always remember, the solicitor won't be the one on trial or in jail and it's in their financial interest to let the thing go to court.

Peregrinus

ResearchWill wrote: »

Not only can you you should only answer all questions with the following mantra, "On the advice of my solicitor I refuse to answer that question."

If a suspect is later before a court and interview where no questions are answered, there is as far as the jury is concerned no interview. If any question is answered that question and any answer can and more than likely be put before the jury.

Is this correct? As Mr. Incognito points out, your failure to mention something at interview which you later rely on in court can be put to the jury, so (unless you are equally silent in court) the jury very likely will know that you were interviewed, and were uncooperative.

And, if you specifically say that you are remaining silent on the advice of your solicitor when your solicitor is not present, the obvious implication is that you took legal advice in advance about how to conduct yourself if interviewed - i.e. you expected to be interviewed. And a jury is likely to draw very negative inferences from that, no?

ResearchWill

Mr. Incognito wrote: »

You do not have to answer anything but your silence can be put to the jury who are entitled to draw inferences from it

Your solicitor is not entitled to be present when you are intereviewed

Notes are required as they need to be evidenced in court and contempareous accounts must be shown as the Guard will be cross examined by the defence Barrister and god help him if he doesn't have it written down as Counsel will tear him apart

The law is on the defence's side.[/QUOTE

The bolded part is incorrect. Non answer of questions can only be put to the jury in very limited circumstances. I have never seen it done, I have seen AGS try to the inferences but as I said they have not been able to do so.

If the inferences are invoked, it can only be done in limited circumstances, you must be informed clearly, you must be allowed to speak to you solicitor about that specific issue. The inferences can not be used as the only evidence against the accused.

Part 4.

http://www.oireachtas.ie/documents/bills28/acts/2007/a2907.pdf

ResearchWill

Peregrinus wrote: »

Is this correct? As Mr. Incognito points out, your failure to mention something at interview which you later rely on in court can be put to the jury, so (unless you are equally silent in court) the jury very likely will know that you were interviewed, and were uncooperative.

And, if you specifically say that you are remaining silent on the advice of your solicitor when your solicitor is not present, the obvious implication is that you took legal advice in advance about how to conduct yourself if interviewed - i.e. you expected to be interviewed. And a jury is likely to draw very negative inferences from that, no?

Except in the very very very rare situation of the inferences, the jury will know nothing of and refusal to answer question nothing at all. It is as if no interview took place. I recently was in a trial with 3 defendants one said nothing, one answered a few questions and the third answered a good few. The last two had certain parts of their interviews put to the jury the first had nothing at all.

ResearchWill

SB2013 wrote: »

"No Comment" is easier for everyone. I hear a few solicitors give the same advice but in my opinion it should only be taken by people who are guilty. If there is a simple explanation for something then just give it. No point getting a charge because you didnt clear something up. Always remember, the solicitor won't be the one on trial or in jail and it's in their financial interest to let the thing go to court.

The reason I use that form of words is in case at some stage AGS try the inferences, there is a very good and valid legal reason for the formula.

Peregrinus

ResearchWill wrote: »

Except in the very very very rare situation of the inferences, the jury will know nothing of and refusal to answer question nothing at all. It is as if no interview took place. I recently was in a trial with 3 defendants one said nothing, one answered a few questions and the third answered a good few. The last two had certain parts of their interviews put to the jury the first had nothing at all.

But then before exercising your right to silence you would need to know, wouldn't you, that the question on which you are exercising your right to silence is not one of those, a refusal to answer which may be mentioned to a jury?

And I still maintain that it's stupid to say that you'e been advised by your solicitor not to answer, where this is not fact the case. There are no circumstances in which adding this detail will strengthen your position, and it is conceivable that it may harm it if your refusal to answer can, in fact, be mentioned to a jury.

ResearchWill

Peregrinus wrote: »

But then before exercising your right to silence you would need to know, wouldn't you, that the question on which you are exercising your right to silence is not one of those, a refusal to answer which may be mentioned to a jury?

And I still maintain that it's stupid to say that you'e been advised by your solicitor not to answer, where this is not fact the case. There are no circumstances in which adding this detail will strengthen your position, and it is conceivable that it may harm it if your refusal to answer can, in fact, be mentioned to a jury.

If the inferences are been invoked its a different process, its not the same questioning. Example arrested questioned for a few hours no answers, then AGS stop, they invoke the inferences same must be explained you must have time to re consult solicitor and only then do the recommence interview. It is because of the inferences that I always say use the set formula, if then AGS invoke inferences I as a defences barrister would rather be dealing with the mantra Han either silence or admissions.

BTW on what basis do you maintain the wording is stupid.

SB2013

ResearchWill wrote: »

The reason I use that form of words is in case at some stage AGS try the inferences, there is a very good and valid legal reason for the formula.

But you would advise that wording before the inferences are being used too? As you said your self they are seperate stages.

Peregrinus

I don’t see anything in the 1984 Act that says you must have an opportunity to consult a solicitor before being required to answer questions, the failure to answer which can be mentioned to a jury. Is that provided elsewhere?

As for why it’s stupid to say that you’ve been advised by your solicitor not to answer, I’ve already explained that. If your solicitor isn’t present to advise you and you are claiming that you have advice, the implication is that you took earlier advice on whether to respond if interviewed. And if the situation is one which can be mentioned to a jury, the jury will infer that you thought it was possible or likely that the guards would want to interview you, from which it is a short step to the inference that you knew the guards might have good reason to interview you in connection with this crime.

If you’re not going to answer, then a simple “no comment” or “I have nothing to say about that” is best. The more you elaborate on that, the more hostages you are giving to fortune.

ResearchWill

SB2013 wrote: »

But you would advise that wording before the inferences are being used too? As you said your self they are seperate stages.

Yes because most people caught and questioned for criminal activity are usually stupid so it easier.

ResearchWill

Peregrinus wrote: »

I don’t see anything in the 1984 Act that says you must have an opportunity to consult a solicitor before being required to answer questions, the failure to answer which can be mentioned to a jury. Is that provided elsewhere?

As for why it’s stupid to say that you’ve been advised by your solicitor not to answer, I’ve already explained that. If your solicitor isn’t present to advise you and you are claiming that you have advice, the implication is that you took earlier advice on whether to respond if interviewed. And if the situation is one which can be mentioned to a jury, the jury will infer that you thought it was possible or likely that the guards would want to interview you, from which it is a short step to the inference that you knew the guards might have good reason to interview you in connection with this crime.

If you’re not going to answer, then a simple “no comment” or “I have nothing to say about that” is best. The more you elaborate on that, the more hostages you are giving to fortune.

That's because it was amended by the Criminal Justice Act 2007. The relevant bit

(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

While you solicitor is not in the interview room in the vast majority of interviews the solicitor gives advice before interviewing commences. As you don't seem to understand (except in inferences) nothing can be put before the jury, if you answer no comment in german, if you say "**** you pig I'm not answering" can't be put before the jury.

As I said if its the inferences case I would rather deal with my mantra than an admission or silence, because I can tell the jury my client is thick and he only did what the bad solicitor said. It is because of my knowledge of this that my clients are all innocent.

SB2013

ResearchWill wrote: »

That's because it was amended by the Criminal Justice Act 2007. The relevant bit

(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

While you solicitor is not in the interview room in the vast majority of interviews the solicitor gives advice before interviewing commences. As you don't seem to understand (except in inferences) nothing can be put before the jury, if you answer no comment in german, if you say "**** you pig I'm not answering" can't be put before the jury.

As I said if its the inferences case I would rather deal with my mantra than an admission or silence, because I can tell the jury my client is thick and he only did what the bad solicitor said. It is because of my knowledge of this that my clients are all innocent.

i think you mean "found not guilty"

ResearchWill

SB2013 wrote: »

i think you mean "found not guilty"

No I mean innocent a a person enters a court room innocent, and remains so till a finding of guilt. It the golden thread.

SB2013

ResearchWill wrote: »

No I mean innocent a a person enters a court room innocent, and remains so till a finding of guilt. It the golden thread.

Whatever helps you sleep at night.

ResearchWill

SB2013 wrote: »

Whatever helps you sleep at night.

Don't need that to sleep, it's the law that protects every citizen even you and I.

seb65

ResearchWill wrote: »

No I mean innocent a a person enters a court room innocent, and remains so till a finding of guilt. It the golden thread.

Actually, the finding is "not guilty" not "innocent". There have been all sorts of philosophical discussions on why we find accused's not guilty instead of innocent.

ResearchWill

seb65 wrote: »

Actually, the finding is "not guilty" not "innocent". There have been all sorts of philosophical discussions on why we find accused's not guilty instead of innocent.

That is the jury finding but as you enter court innocent you remain innocent the status does not change.

Procrastastudy

We have a binary state here unlike Scotland that has the "Not Proven" verdict which is different from a not guilty verdict. People forget it's a cornerstone of our legal system them people are innocent until proven guilty.

Frankly a defence lawyer using every means at his disposal in an adversarial system wouldn't keep me up night. Him/her NOT doing so would. I've some (very small) experience of miscarriages of justice and it ain't pretty!

SB2013

Procrastastudy wrote: »

We have a binary state here unlike Scotland that has the "Not Proven" verdict which is different from a not guilty verdict. People forget it's a cornerstone of our legal system them people are innocent until proven guilty.

Frankly a defence lawyer using every means at his disposal in an adversarial system wouldn't keep me up night. Him/her NOT doing so would. I've some (very small) experience of miscarriages of justice and it ain't pretty!

It might keep you up if you were his victim.

Procrastastudy

SB2013 wrote: »

It might keep you up if you were his victim.

I don't understand that logic. Would I want an innocent person locked up for a crime committed against me? No I'd want the actual person who wronged me punished. If due to crap prosecution on behalf of the DPP the person escapes punishment I'd be angry at the DPP.

seb65

Procrastastudy wrote: »

We have a binary state here unlike Scotland that has the "Not Proven" verdict which is different from a not guilty verdict. People forget it's a cornerstone of our legal system them people are innocent until proven guilty.

Frankly a defence lawyer using every means at his disposal in an adversarial system wouldn't keep me up night. Him/her NOT doing so would. I've some (very small) experience of miscarriages of justice and it ain't pretty!

I certainly did not forget that technically, under our justice system, people are innocent until proven guilty. However, to believe it is a cornerstone (in that it is afforded all the respect, on the ground as cornerstones are), or that, in practice, society holds these people are innocent, is terribly naive. If it was so dearly held as you seem to believe, juries would declare people "innocent".

SB2013

Procrastastudy wrote: »

I don't understand that logic. Would I want an innocent person locked up for a crime committed against me? No I'd want the actual person who wronged me punished. If due to crap prosecution on behalf of the DPP the person escapes punishment I'd be angry at the DPP.

Nobody said anything about an innocent person. A case cannot always be proven. It doesn't mean the guy in the dock is innocent. Maybe it's due to a poor prosecution, lack of evidence, inadequate legislation or dirty tricks that he wasn't found guilty. It doesn't matter really. I realise it's necessary for a defence barrister or solicitor to believe in the "innocent until proven guilty" mantra for them to have a clear conscience but it doesn't mean the rest of us do.

Procrastastudy

seb65 wrote: »

I certainly did not forget that technically, under our justice system, people are innocent until proven guilty. However, to believe it is a cornerstone (in that it is afforded all the respect, on the ground as cornerstones are), or that, in practice, society holds these people are innocent, is terribly naive. If it was so dearly held as you seem to believe, juries would declare people "innocent".

That would be declaring the state they were already in. It would be the same as declaring them human, male/female or declaring them to have there name. Declaring them innocent would imply they were not until that declaration - hence the use of the term 'not guilty'.

I think I'm gonna like juris when it comes around next year

seb65

Procrastastudy wrote: »

I don't understand that logic. Would I want an innocent person locked up for a crime committed against me? No I'd want the actual person who wronged me punished. If due to crap prosecution on behalf of the DPP the person escapes punishment I'd be angry at the DPP.

I believe being kept up at night may have something to do with the fear that the perp would come back to commit another offence against you.

So, you're saying if someone harmed you and suffered no repercussions for his actions, you'd only be mad at the DPP?

I call bulls**t.

seb65

Procrastastudy wrote: »

That would be declaring the state they were already in. It would be the same as declaring them human, male/female or declaring them to have there name. Declaring them innocent would imply they were not until that declaration - hence the use of the term 'not guilty'.

I think I'm gonna like juris when it comes around next year

Actually, as the DPP has the case to prove, "not guilty" means the DPP has not proven their case. The jury cannot declare them "innocent" as they have no idea whether they are actually innocent or not.

ResearchWill

seb65 wrote: »

I certainly did not forget that technically, under our justice system, people are innocent until proven guilty. However, to believe it is a cornerstone (in that it is afforded all the respect, on the ground as cornerstones are), or that, in practice, society holds these people are innocent, is terribly naive. If it was so dearly held as you seem to believe, juries would declare people "innocent".

The presumption of innocence is called the Golden Thread of the Criminal Justice system not the bronze or silver it's the golden thread.

Procrastastudy

SB2013 wrote: »

Nobody said anything about an innocent person. A case cannot always be proven. It doesn't mean the guy in the dock is innocent. Maybe it's due to a poor prosecution, lack of evidence, inadequate legislation or dirty tricks that he wasn't found guilty. It doesn't matter really. I realise it's necessary for a defence barrister or solicitor to believe in the "innocent until proven guilty" mantra for them to have a clear conscience but it doesn't mean the rest of us do.

Again why would they need anything to have a clear conscience? They are engaging in an adversarial process. They are bound by a code of ethics that does not allow them to plead innocence where the accused admits guilt. All that is required is that they do no prejudge. They present one side, the prosecution presents another and the jury decides.

Procrastastudy

seb65 wrote: »

Actually, as the DPP has the case to prove, "not guilty" means the DPP has not proven their case. The jury cannot declare them "innocent" as they have no idea whether they are actually innocent or not.

They are told at the beginning of the trail the person is innocent. I wish I was better at remembering case law and quotes but the gist is that stating such can never be reduced to a mere formality.

seb65

Procrastastudy wrote: »

They are told at the beginning of the trail the person is innocent. I wish I was better at remembering case law and quotes but the gist is that stating such can never be reduced to a mere formality.

If they are told at the beginning of a trial that a person is innocent, then what is the jury doing there in the first place?:P

Procrastastudy

seb65 wrote: »

I believe being kept up at night may have something to do with the fear that the perp would come back to commit another offence against you.

So, you're saying if someone harmed you and suffered no repercussions for his actions, you'd only be mad at the DPP?

I call bulls**t.

Sorry you feel that way but I don't think you read my post fully.

Procrastastudy

seb65 wrote: »

If they are told at the beginning of a trial that a person is innocent, then what is the jury doing there in the first place?:P

Deciding if the person is guilty by virtue of the prosecution's case.

[Removed irrelevant part which called for personal information - sorry Seb]

seb65

ResearchWill wrote: »

The presumption of innocence is called the Golden Thread of the Criminal Justice system not the bronze or silver it's the golden thread.

It may be that the rights of an accused are based on the presumption of innocence. However, to say that, practically, a person is viewed as innocent by their peers until they are proven to be guilty, is terribly naive. If they were lilly white innocent, there would be no need for the question of bail and their names would not be published until they were found guilty.

To say that someone is innocent of a crime merely because they were found not guilty is wrong.

seb65

Procrastastudy wrote: »

Deciding if the person is guilty by virtue of the prosecution's case.

No offence Seb and I mean no offence because I might be mistaken here but aren't you legally qualified some how? (Law degree / FE1s) I only say this because you might not agree with it but you know its the procedure.

What you said was, the jury is told the defendant is innocent (I assume you mean by the judge). If the judge tells the jury the defendant is innocent, what does the jury have left to decide?

Perhaps you meant the jury is told the defendant is innocent...until proven guilty.

ResearchWill

seb65 wrote: »

It may be that the rights of an accused are based on the presumption of innocence. However, to say that, practically, a person is viewed as innocent by their peers until they are proven to be guilty, is terribly naive. If they were lilly white innocent, there would be no need for the question of bail and their names would not be published until they were found guilty.

To say that someone is innocent of a crime merely because they were found not guilty is wrong.

Watch any Jury trial, because of the view you hold the Judge and both Prosecution and Defence take up a huge amount of time hammering home the innocent till proven guilty, to have a jury think anything else means we should just let AGS make the finding.

Procrastastudy

seb65 wrote: »

What you said was, the jury is told the defendant is innocent (I assume you mean by the judge). If the judge tells the jury the defendant is innocent, what does the jury have left to decide?

Perhaps you meant the jury is told the defendant is innocent...until proven guilty.

So you're saying that innocent until proven guilty is some other state than innocent despite the overwhelming Irish and Common Law jurisprudence to say otherwise?

While I concede people have difficulty with the concept and say X must have done it how is what the 'mob' think without considering the case relevant?

To your point on peers - how does any jury ever acquit then?