Your rights while in Garda Custody

So you have been detained in a Garda station what happens now? What procedures must the guards follow? No doubt ending up in a garda station is daunting. Hopefully my blog post will help you understand your rights and future proposals that are coming down the line.

When a person is detained certain procedures must be followed by An Garda Síochána in accordance with the provisions of the treatment of persons in custody regulations. The member in charge must authorise your detention. Also he/she is obliged to inform you that you’re entitled to consult with a solicitor immediately.  Also you have the right to request medical attention, if needed. A member of your family must be told that you are being kept at the Garda Station.

The member-in charge is responsible for overseeing the application of the custody regulations. If you feel that you’re not being treated fairly then you should ask to speak to the member in charge. While you are in the garda station a custody record will be kept. This details the reason for your arrest and the time at which you arrived, as well as your personal details. It should also include a record of any solicitor or doctor visits and of any food given. You have the right to be served at least two light meals and one main meal during any 24-hour period of time. You’re entitled to sleep for eight hours between midnight and 8 a.m. However, this may not count towards the total detention time and you may be kept longer than if you hadn’t slept.

Interview Recordings

You might wonder what will happen when the guards interview you. Under the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations, 1997.interviews must be recorded by either video or audio recording. This provision is mandatory. These Regulations were brought in with a two fold purpose of protecting the accused from oppressive questioning and also to protect the Gardai from unwarranted accusations about ill treatment of clients in custody.

Article 6 – Right to fair trial

You might ask what about your human rights? Article 6 of the European Convention on Human Rights (ECHR) guarantees the right to a fair trial. It guarantees procedural rights of parties to civil proceedings (Article 6 (1) and rights of the defendant (accused suspect) in criminal proceedings (Article 6 (1, 2 and 3). The procedural protection afforded by Article 6 comes into play as soon as a “criminal charge” is brought against an individual; and it remains in place until the charge is “determined” that is until the sentence has been fixed or an appeal decided. But Article 6 requirements of judicial procedure do not cover the pre- “charge” phase of a prosecution, and in particular the process of criminal investigation prior to charging.

Right to access a solicitor during questioning

Irish law has long held that there is a constitutional right of reasonable access to a solicitor (see Lavery v. Member in Charge  Carrickmacross Garda Station {1999} 2 IR 390). The concept of ‘reasonable access’ includes access while a suspect is in detention. However, unlike other common law jurisdictions  ‘reasonable access’ does not include a solicitor sitting in while a suspect is being interviewed. Irish law does not currently allow a solicitor to be present during Garda questioning of persons in custody.  Defence solicitors are not entitled to prescribe the manner in which interviews are to be conducted nor what notes should be taken.

The issue of whether a solicitor is entitled to be present during Garda questioning is most likely to be litigated again. The recent cases of Cadder v. HM Advocate [2010] UKSC 43 and Salduz v. Turkey [2008] 49 EHRR 421 are relevant in this regard. In both of those cases the suspects were denied access to legal advice while in detention. In the 2008 case of Salduz the Grand Chamber recognised the right of access to a lawyer as an essential pre-condition to any form of custodial questioning. Applying the Salduz case the UK Supreme Court held that Scottish law was incompatible with the ECHR in that it failed to vindicate the right of a detained person to have access to a lawyer prior to police questioning. It violated the suspect rights under arts 6(1), (3)(c) of the ECHR.  Through legislation, the Scottish Government has now given suspects in detention the right to legal advice before and during questioning as required by the Supreme Court.

Future Proposals

Given the trend in the case law of the European Court of Human Rights, and the fact that the presence of a lawyer is a central aspect of the proposed Directive on the Right of Access to a lawyer in criminal proceedings, Minister Alan Shatter is considering the possibility of a change in approach. At an address to a reception at the European Academy of Law (Brussels Office) on Thursday 7th March 2013. Minister Shatter stated:  ‘The objective is to establish common minimum standards of procedural rights in criminal proceedings to ensure that the basic rights of suspects and accused persons are sufficiently protected. Directives on the right to interpretation and translation and the right to information have already been adopted. Under the Irish Presidency the proposed Directive on the right of access to a lawyer in criminal proceedings is making progress. This proposal seeks to improve the rights of suspects and accused persons in criminal proceedings by ensuring, as a common minimum standard, the right to a lawyer and to communicate upon arrest with a third person. The Council reached agreement on this file last June and I am hopeful that the Irish Presidency will successfully conclude negotiations with the European Parliament on this important instrument.’

The proposed EU Directive is under negotiation with the European Parliament, and it is hoped that it will be concluded during the Irish presidency. Although Ireland did not opt in to the measure, we can opt in later once the measure has been adopted. To opt in later, we would have to satisfy the Commission that our domestic legislation and procedures were sufficient to give effect to the directive in Irish law.

The Minister has decided to set up a group to offer advice and recommendations in relation to a possible scheme that would provide for the presence of a legal representative during garda interviews with persons in custody. It is chaired by Dr. Moling Ryan, Chief Executive of the Legal Aid Board. The working group terms of reference are:

• To consider the content and requirements of the proposed draft: Directive on the Right of Access to a lawyer in Criminal  Proceedings.
• To recommend one or more practical and cost effective options for the establishment of a scheme to facilitate the implementation of the provisions in the draft directive in this jurisdiction.
• In making its recommendations, to have regard to arrangements in comparable jurisdictions.
• In making its recommendations to take specific account of current budgetary constraints and to provide an estimate of potential costs that might accrue to the Garda Station Legal Advice Scheme.
• To provide a written report incorporating recommendations within four months.

Conclusion

This is a very interesting development in Ireland given that in the UK Northern Ireland, Scotland and many other common law jurisdictions that a solicitor is entitled to be present throughout the detention period with the client. I have no doubt that the welfare of the suspect in Garda detention has improved over the last few years. There is no doubt in my mind that the most important function of a criminal lawyer is to be available to attend his/her clients while they are in detention. Such clients, often young, inexperienced and frightened, have been deprived of their liberty, taken away from their friends and put in an alien environment. There is huge pressure on them to make a statement and thus end the detention. Such persons have a constitutional right to see their solicitor and it is our responsibility to ensure that they are seen. Suspects in Ireland lack a certain entitlement enjoyed by suspects in other common law jurisdictions. Only time will tell what approach Minister Shatter will take to this issue but in the meantime Ireland remains in an isolated position to other common law jurisdictions.

Mar 25, 13