A leading senior counsel has criticised the Supreme Court for "enshrining the principle" that people in detention are not entitled to have their solicitors present during Garda interviews.
Writing in the Bar Review last week, Mr Paddy MacEntee SC said that the Supreme Court had an ideal opportunity recently to consider the rights of those in custody in the context of the 1998 Offences Against the State (Amendment) Act.
The legislation was passed in the wake of the Omagh bombing.
Mr MacEntee wrote the article jointly with Ms Faye Breen BL. "It was hoped that the court would analyse and eliminate the absurdities which this Act has created, but instead it chose to deliver another blow to the right to silence," they wrote.
They were commenting on the recent case of Deaglan Lavery v the Member in Charge, Carrickmacross Garda Station. The State had appealed in the Supreme Court against a High Court decision that Mr Lavery had been wrongly detained. Mr Lavery had been arrested on suspicion of being a member of an unlawful organisation. His solicitor, Mr James MacGuill, had been informed, but had not been present during all the interviews with him. He had sought the notes of Garda interviews with his client, but these were refused. In the appeal the Supreme Court found in favour of the State.
Mr MacEntee and Ms Breen pointed out that under the 1998 Offences Against the State (Amendment) Act it is an offence to stay silent without a reasonable excuse when a person in custody has information that might be of assistance to the Garda. This is similar to Section 52 of the 1939 Act, which makes it an offence to fail to give an account of one's movements.
This provision of the 1939 Act is at present the subject of two separate cases before the European Court of Human Rights.
According to Mr MacEntee and Ms Breen, this provision, reworded in the 1998 Act, has not been tempered by strong safeguards to prevent abuse of the system, similar to those in England, Wales, and the North.
"The significance of an erosion of this right [to silence] . . . cannot be underestimated and the situation is compounded by the fact that the right of reasonable access to a solicitor . . . does not stretch so far as to provide a right to the presence of one's solicitor during Garda interviews," they wrote.
All the measures contained in the Offences Against the State Act and its amended versions are the subject of a review just begun by a committee set up under the chairmanship of Mr Justice Anthony Hederman.
The review arises from the Belfast Agreement, which committed the Government to "take steps to further strengthen the protection of human rights in its jurisdiction".