A CHALLENGE to the law in Ireland denying a suspect the right to have a solicitor present while questioned is now more likely in the wake of a decision of the UK Supreme Court, according to a leading criminal lawyer.
Solicitor James McGuill was commenting on the unanimous seven-judge decision of the UK court yesterday, when it confirmed that the law in Scotland breaches the right to a fair trial by not allowing advice and representation to detained persons in the police station.
This follows a decision of the European Court of Human Rights in 2008, when the Grand Chamber (full court) of the Strasbourg court ruled there had been a violation of a suspect’s rights to a fair trial because he had not had the benefit of legal advice while in police custody.
In the Scottish case, a 16-year-old made admissions of guilt in a police interview without having seen a lawyer and was subsequently convicted. The Scottish courts must now decide whether his trial was unfair in the light of the supreme court ruling.
There have been previous challenges in Ireland to the denial of a right to a solicitor while a suspect is being questioned by gardaí, but they have failed. The law was decided most recently in a case called Lavery, when in 2000 the Supreme Court held that the suspect’s rights were not violated by the denial of a solicitor.
However, that judgment was made prior to the enactment of the European Convention on Human Rights Act in 2003, which incorporated the convention into Irish law.
The Human Rights Act in the UK similarly incorporated the convention, and the Scottish parliament did so separately.
In the UK Supreme Court ruling yesterday, the law lords held there was a “a clear and consistent line of authority from the European Court of Human Rights, that in order to ensure that the right against self-incrimination is properly protected, a suspect must be afforded the right to legal advice as from the first interrogation”.
One of the law lords, Lord Rodger, said: “For this reason, in my view there is not the remotest chance that the European court would find that, because of the other protections that Scots law provides for accused persons, it is compatible with article 6(1) and (3)(c) for the Scottish system to omit this safeguard . . . and for suspects to be routinely questioned without having the right to consult a lawyer first. On this matter, Strasbourg has spoken: the courts [here] have no real option but to apply the law it has laid down.”
Mr McGuill said: “It is almost certain Ireland is behind the European norm now, and is likely to be the only country which does not allow lawyers to be present during questioning. It is likely that cases will be taken seeking a reconsideration of earlier Irish decisions in the light of this and the recent Strasbourg rulings.”
The rulings of the British and Strasbourg courts are also likely to be considered by a committee set up by the Minister for Justice last July on Garda interviewing of suspects following recommendations from the Morris tribunal.
The committee is chaired by the former president of the Circuit Court, Mr Justice Esmond Smyth, and includes Deputy Garda Commissioner Martin Callinan,Ruth Fitzgerald of the Office of the Attorney General, and Patrick Gageby SC of the Bar Council.