Right to have a solicitor present during interview by gardaí.

political analyst

According to this article, which was published in September 2017, most people who were arrested by gardaí didn't avail of what was then the relatively new right to have a solicitor present when they were interviewed.

https://www.irishtimes.com/news/crime-and-law/most-arrested-not-availing-of-right-to-solicitor-presence-at-questioning-1.3229668

Dr Vicky Conway said it was perhaps the case that solicitors were unwilling to give advice during (as opposed to before) the interviews due to the interviews being recorded for evidential purposes and also that most people were unaware of a 2014 ruling by the DPP that there was a right to have a solicitor present during the interview (and I'm aware that it didn't always exist, given that the Supreme Court had ruled in 2017 in the case of convicted murderer Barry Doyle that the right of access to a solicitor didn't include the right to have the solicitor present during the interview).

Given that solicitors in England are able to confer with their clients during police interviews, why would Irish solicitors have been reluctant to be present during Garda interviews? After all, even if any element of a conversation between the solicitor and the client was recorded on tape, legal professional privilege means that the content of the conversation would be inadmissible in court anyway.

Atlantic Dawn

After doing jury duty I would never ever ever ever do an interview with Gardai without a solicitor present, whether I was 100% innocent or guilty as hell.

political analyst

I've put my OP in the wrong forum by mistake.

Jequ0n

Well, if people are too stupid to know their rights it’s really their own problem. Unless there is a legal requirement for the police notify them of their right to have a solicitor present, they’d be be making their lives much more difficult.

Prefect_1998

I have a question around this I always wanted to know, if someone has never needed a solicitor and they find them selves in a station, how do you go about getting a solicitor at short notice ? Are you at a huge disadvantage by not having a solicitor pre selected and a relationship built up ?

https://www.boards.ie/discussion/comment/118051559#Comment_118051559

I've wondered this before. Do you use the guy who does conveyancing for you? Erm, doesn't sound right, even if they have general training like a GP for health issues.

Not that I can think of a reason why I'd need one.🙊

jo187

I think due to American films, most people assume they could have a lawyer present, like the Irish people who call 911 in emergency.

Esel

The Garda Station will have a list of solicitors on call.

Victor

https://www.boards.ie/discussion/comment/118051559#Comment_118051559

There will be a list of 'duty solicitors' (local solicitors that are available on call) at each Garda station.

If you ask your conveyancing solicitor, they are going to refer you to someone who does criminal law.

Boards.ie: Niamh

https://www.boards.ie/discussion/comment/118051419#Comment_118051419

Moved to Legal Discussion, their charter now applies.

SteM

https://www.boards.ie/discussion/comment/118051554#Comment_118051554

If someone has never been in trouble with the Gardai and is innocent of whatever they are being questioned about how would they know about this requirement without being told about it? Why would you suggest it's stupidity for not knowing something? Should we all know everything in your view?

You don't seem to know if there is a requirement for Gardai to tell someone of this requirement, are you too stupid to know this?

Jequ0n

https://www.boards.ie/discussion/comment/118052874#Comment_118052874

Because everyone is responsible for their own life and I am tired of people complaining that they were not spoon fed information. If someone is gullible enough to be questioned without legal support they are free to do so, but then they can’t whinge when it bites them in the ass. Some mistakes need to be painful.

SteM

https://www.boards.ie/discussion/comment/118053361#Comment_118053361

That's different to inferring someone is stupid for not knowing something.

Allinall

Are you not "read your rights" whilst being arrested?

I'm really stupid because I don't know the answer.

Jequ0n

https://www.boards.ie/discussion/comment/118053381#Comment_118053381

There are basic things in life that an adult should know about. One quick thought on possible repercussions usually does the trick. If someone is unable to do this they are stupid in my world. But this is derailing the thread.

Victor

https://www.boards.ie/discussion/comment/118053405#Comment_118053405

Yes. However people don't always appreciate the point.

political analyst

https://www.boards.ie/discussion/comment/118051627#Comment_118051627

It's also due to English police procedural dramas.

political analyst

An article about the 2017 Supreme Court decision in the Barry Doyle case.

https://www.pila.ie/resources/bulletin/2017/02/01/supreme-court-finds-no-automatic-right-for-solicitor-to-be-present-during-garda-station-interviews

Solicitors don't want to sit in Garda interviews for hours, it's wasting their time.

joseywhales

https://www.boards.ie/discussion/comment/118053421#Comment_118053421

So is a pensioner with early stage Alzheimer's stupid? Or someone who has been in a traumatic situation with extremely high levels of adrenaline? Or someone from a different country with different laws who is here for a weeks vacation. There are no excuses, they are always just stupid?

Snugbugrug28

https://www.boards.ie/discussion/comment/118051406#Comment_118051406

Why, what happened?

Padre_Pio

This is video is from a US context, but I think it applies equally well here.

It's a lawyer, and a police officer telling you from both perspectives that it is essential you say nothing to the police, unless you have legal advice present. Literally, say nothing except ask for a lawyer, whether you're guilty or innocent.

https://youtu.be/d-7o9xYp7eE

Jequ0n

https://www.boards.ie/discussion/comment/118055784#Comment_118055784

Yes, and it’s their own problem.

GM228

https://www.boards.ie/discussion/2058214107/right-to-have-a-solicitor-present-during-interview-by-gardai

"Dr Vicky Conway said it was perhaps the case that solicitors were unwilling to give advice during (as opposed to before) the interviews due to the interviews being recorded for evidential purposes and also that most people were unaware of a 2014 ruling by the DPP that there was a right to have a solicitor present during the interview (and I'm aware that it didn't always exist, given that the Supreme Court had ruled in 2017 in the case of convicted murderer Barry Doyle that the right of access to a solicitor didn't include the right to have the solicitor present during the interview)"

Some clarity on this.

There has never been a right to have a solicitor present during questioning, and it was not a "ruling" by the DPP either, rather a mis-interpreted (or more importantly a clearly wrong) understanding of a previous Supreme Court case - the DPP vs Gormley and DPP vs White [2014] IESC 17.

Following advice from the DPP, AGS issued a 2015 practice direction saying a solicitor was entitled to be present (if requested) in light of the Gormley case (the practice direction is still the live version):-

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.lawsociety.ie/globalassets/documents/committees/criminal/guidance-for-solicitors-providing-legal-services-in-garda-stations.pdf&ved=2ahUKEwiU8e6FmN3zAhXZiVwKHfP5Ae4QFnoECAkQAQ&usg=AOvVaw1HoZC0eTfL0eDmTwz3sj0z

And this is what it specifically states:-

Following the decision of the Supreme Court in the Gormley case (and the related case of White) the Director of Public Prosecutions advised the Garda Commissioner that if requested a suspect was entitled to have a solicitor present during interview in custody.

What actually happened in the Gormley case was that the SC just reconfirmed that reasonable access to (not presence of) a solicitor was a Constitutional right (having been so since 1990 and a common law right prior to that since 1977).

Despite the assertion made by the DPP a person in custody was not entitled to a solicitor being present during interview as a result of the Gormley case, how the DPP cane to that conclusion is not known, but, for anyone thinking perhaps the Gormley case gave them that impression or it was implied or unclear etc, the answer is no it didn't, in fact the Gormley case specifically stated quite the opposite:-

https://www.bailii.org/ie/cases/IESC/2014/S017.html

The Supreme Court stated the question of presence of a solicitor did not arise, and confirmed the matter had already previously been decided:-

This Court has also ruled that the right to reasonable access does not extend to having a lawyer present during questioning (see Lavery v Member in Charge, Carrickmacross Garda Station [1999] 2 IR390

The 2017 Doyle case basically just reconfirmed what it had already stated in the Gormley case and the 1999 Lavery case, and still the 2015 practice direction is still live which says the Gardaí must inform you of your right to have a solicitor present, and your entitlement to do so if you so request.

https://www.boards.ie/discussion/comment/118056071#Comment_118056071

If the gardai ignored the live advice would there be any practical legal repercussions for the suspect, as in recourse of some kind?

Peregrinus

https://www.boards.ie/discussion/comment/118056085#Comment_118056085

Depends on what you're asking here.

If the guards interview you without a solicitor present despite your having requested one, do you have the recourse of e.g. being able to sue them for damages? No, probably not.

If the guards interview you without a solicitor present despite your having requested one, and later charge you with an offence and in the proceedings for that offence seek to rely on evidence of what you said in the interview, can you object to the admissibility of the evidence? I'd defer to GM228 on this - in fact, I'd defer to a lot of people on this - but my gut sense is that, no, you can't say straight up that the evidence is inadmissible but yeah, you've still got some mileage here. Even if you can't point to a constitutional right that has been violated, if nothing else the guards acting in breach of applicable directives can be used in support of a wider argument that the investigation was not properly conducted, that proper standards were not observed, that information obtained is tainted and must be viewed with suspicion.

GM228

https://www.boards.ie/discussion/comment/118056085#Comment_118056085

The right to reasonable access to a solicitor is a Constitutional right, the right to be informed of that right is a corally to that and also mandated by legislation.

GM228

https://www.boards.ie/discussion/comment/118056094#Comment_118056094

You actually can say straight up the evidence is inadmissible if you don't get access because the matter has already been well settled by the Supreme Court.

Evidence obtained without access to a solicitor is admissible when you wave your right to access to a solicitor.

Otherwise, evidence (with the exception of evidence obtained by way of taking of samples) obtained without access to a solicitor after you request such access is inadmissible and unconstitutional.

Andrea B.

https://www.boards.ie/discussion/comment/118053679#Comment_118053679

Are you suggesting another profession attends?

Peregrinus

https://www.boards.ie/discussion/comment/118056147#Comment_118056147

I think the question is, what if you are afforded access to a solicitor, but (in breach of the protocol, but not in breach of your constitutional rights) are not permitted to have a solicitor with you during the interview?

https://www.boards.ie/discussion/comment/118056094#Comment_118056094

The latter. Thanks.

https://www.boards.ie/discussion/comment/118056159#Comment_118056159

No. I'm saying solicitors don't want to spend their day in an interview room at a Garda station.

GM228

https://www.boards.ie/discussion/comment/118056190#Comment_118056190

It's a practice direction issued by AGS, it has no statutory authority or legal standing, it creates no legal rights and imposes no obligation on the Gardaí so the answer would be no, what does have legal status however is the continued confirmation by the superior courts that there is no right to have an actual presence of a solicitor and as you know non statutory practice direction can't trump that.

kirving

https://www.boards.ie/discussion/comment/118051406#Comment_118051406

110%. I've been on jury duty twice, and went into a courtroom for a look one day as I was passing by and had time to kill. I've seen Gardai outright lie about tbh extremely basic things which I knew to be incorrect.

https://www.boards.ie/discussion/comment/118053421#Comment_118053421

This kind of rhetoric is normally comes from people who believe that they're smarter than everyone else, on basically every topic. The possible repercussions of you not knowing how to fly a plane, or check the safety of the gas supply in your house house could be fatal. Maybe you can do both of those things, but if not, is it because you're too stupid?

hierro

Upon arrest a person arrested is twice informed of the right to legal representation. That right may be declined by the person arrested but can be excerised at any time. So that person has a right to reasonable access. Sometimes those who have never had a reason to use a criminal solicitor look for one who may have dealt with family law, civil law or conveyance work for them in the past. This is probably not a problem during business hours but many of these solicitors have no out of hours advisors. It's sometimes difficult to get that point across. The law society of Ireland have a Garda station solicitor list which, when viewed, generates a random list of solicitors which the arrested person is free to choose from that list.

Whilst the right to access a solicitor is in place, they rarely come to the station. When they do, a solicitor can sit in on an interview but their influence on proceedings is somewhat limited.

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.lawsociety.ie/globalassets/documents/committees/criminal/guidance-for-solicitors-providing-legal-services-in-garda-stations.pdf&ved=2ahUKEwi99OPf0t3zAhVCi1wKHbGmCPEQFnoECA8QAQ&usg=AOvVaw1HoZC0eTfL0eDmTwz3sj0z

Jequ0n

https://www.boards.ie/discussion/comment/118056554#Comment_118056554

Bizarre examples which have nothing in common with the topic discussed here. But to your point: yes, I decided to fly a plane I’d die and you could happily name stupidity as the cause of death.

kirving

https://www.boards.ie/discussion/comment/118056844#Comment_118056844

You've repeatedly said that the reason people might not know something which could have bad repercussions for them, is because they're just too stupid.

As you say, you're responsible for your own life. If you are gullible enough to believe the gas supply in your house is safe, don't whinge when it explodes one day and bites you in the ass. There are basic things in life that an adult should know about. One quick thought on possible repercussions of an unsafe gas line usually does the trick and gets people to learn about. If someone is unable to do this they are stupid in my world.

See, I can turn the exact same logic back at you, and it's very easy to justify how stupid you must be, not to know about something which could kill you. The truth is you just don't have experience in a particular area, that doesn't make you stupid.

At the same time, when people are dealing with the Gardai they should rightfully expect that their rights are followed to the letter, and not have to worry about something which they have no experience, in what for most is probably a stressful situation.

political analyst

https://www.boards.ie/discussion/comment/118056071#Comment_118056071

The phrase "ruling by the DPP" was used in the article itself. Obviously, it was a poor choice of vocabulary.

Lenar3556

https://www.boards.ie/discussion/comment/118056230#Comment_118056230

Additionally, its could serve to remedy certain shortcomings in the conduct of the Garda investigation, as the accused will be seen to have had comprehensive legal advice which was fully informed.

Unless there were particular circumstances to warrant otherwise, I would say obtain the legal advice prior to interview.

JimmyVik

I was interviewed as a witness to a crime that was not a crime.

In the interview room they were really hostile to me and accused me of lying. They also bent my words into things I did not say.

I had absolutely nothing to gain by lying or even telling the truth one way or the other. They wanted to frame their man and thats what they were trying to do.

If I were ever interviewed by the Gardai again, I would definitely want a solicitor.

Potential-Monke

Yeah, when you're arrested you get given your rights, and that states that you're entitled to a solicitor. I believe (iirc) it's said again at the start of an interview, and the interview is put on hold until the solicitor arrives. And bubblypop is right, very few solicitors want to sit in on an interview, because they can take hours or days, depending on the offence. Most come, have a quick chat with the suspect, tells them to say nothing at all, and leaves. Then the interview goes ahead, chap says nothing, makes the Garda job that bit easier, rinse and repeat.

But solicitors are only there to give advice, if they interfere with the process other than to give advice, they can be removed from the interview. This was happening as par for course when I left around 2015.

scudzilla

I was arrested about 17yrs ago back in Wales, it was after an incident that involved my ex (also the mother of my 3 kids), she's an alcoholic and was consistently harrasing my GF and causing trouble at her shop, so much so that we got a restraining order out, that didn't stop her though.

Rightly or wrongly one day i snapped after more abusive texts, i went around, took her sim card out of her phone and snapped it, then walked out.

Cop called me in, had nothing to hide or be afraid of so didn't bother with a solicitor, HUGE mistake, i was accused of kicking and punching her for 10mins non stop, her not having any bruises didnt seem to matter to the cops, i was released on bail and had to report back to cop shop 2 months later, this time i went in with a lawyer, an ex cop who hated the cops, all charges dropped, best 150quid i ever spent.

TLDR : ALWAYS, AND I MEAN ALWAYS, take in a lawyer and don't say a word until he's there

Donald Trump

https://www.boards.ie/discussion/comment/118056071#Comment_118056071

The judge in Gormley basically invited a challenge to the decision in Lavery. Taking that as an indication that it would likely be overturned if challenged, there was an administrative decision taken to allow solicitors to be present during questioning in order to preempt that. Lavery was however, as you mention, subsequently reaffirmed in Doyle.

From your link:

9.10 [...] Likewise, the question as to whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of this case for the questioning in respect of which complaint is made occurred before the relevant lawyer even arrived. However, it does need to be noted that the jurisprudence of both the ECtHR and the United States Supreme Court clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present.

I.e. Gormley was about access before being questioned. So the judge couldn't deliver a judgement on access during questioning. But that paragraph was taken to be a strong hint that Lavery would be overturned.

https://www.boards.ie/discussion/comment/118051645#Comment_118051645

and also have to give you a form with all your rights

Jequ0n

https://www.boards.ie/discussion/comment/118057277#Comment_118057277

What’s your point exactly? Where did I claim that I was above everyone else? I applaud you for the length you go to to challenge my thinking.

You can throw a hundred unrelated scenarios at me but it won’t change my mind. Only an idiot would allow themselves to be questioned without legal council. It's the same principle as driving without insurance.

https://www.boards.ie/discussion/comment/118053361#Comment_118053361

If you have no experience of a process you cannot be blamed for not having experience of a process. Except where you are expected to have experience of a process without having had experience of a process.