A unanimous Supreme Court judgment quashing a man’s attempted rape conviction on the grounds that suspects who request a lawyer cannot be questioned by gardaí until they get legal advice has significant implications for Garda investigations.
Mr Justice Frank Clarke said that, given previous European court and other decisions, the Supreme Court’s finding that the constitutional right to a fair trial includes a right to legal advice before questioning “can hardly come as a surprise”.
The State must have known for some time such a ruling was very likely, and if it had not “organised its systems” to take account of that, those in charge of putting such provisions in place “must accept responsibility”, he added.
Mr Justice Adrian Hardiman said it seemed many arrests occur in the early morning, with the possible effect of a wait of several hours before a solicitor can arrive. He queried whether some “dawn” arrests were really necessary.
He said many innocent people arrested and detained find the experience “terrifying” and may opt not to seek legal advice if they know they will have to remain, perhaps in conditions of “fetid semi-darkness” in a cell, for several more hours to await a solicitor.
He was also concerned it was “more than likely” that within months Irish law will provide the time spent waiting for a solicitor “will be added to a person’s detention”.
The five-judge court yesterday overturned the 2008 conviction of Raymond Gormley (29), of Glenwood Park, Letterkenny, Co Donegal, who was jailed for six years for the attempted rape of a mother of two as she slept in her bedroom on April 24th, 2005.
The court ruled statements by Mr Gormley to gardaí, after he had requested a solicitor but before that solicitor arrived, were inadmissible as evidence.
Legal arguments
The judgment has implications for cases and convictions where similar legal arguments have been raised, and the Supreme Court stressed it was likely another case would be taken arguing suspects must have a lawyer physically present when they are being questioned.
Mr Gormley had argued only for the right to receive advice from his solicitor before questioning.
In a separate but linked case, the court unanimously rejected arguments forensic samples taken from convicted murderer Craig White, after White sought a solicitor and prior to that solicitor’s arrival, were inadmissible evidence.
White, of O’Devaney Gardens, Dublin, is serving a life sentence for the murder of Noel Roche (27) at Clontarf Road, Dublin, in November 2005, and his conviction stands following the Supreme Court ruling.
The two cases were referred to the Supreme Court because they raised points of law of exceptional public importance relating to whether evidence obtained by gardaí at a time after a suspect in custody has requested legal advice but before that advice has become available can be regarded as admissible.
Giving the court’s main judgment on both cases, Mr Justice Clarke stressed issues of this type have been the subject of legal debate in many jurisdictions for some time.
Mr Gormley's interrogation began while the arrival of a solicitor was awaited while, in White's case, forensic samples were taken from him while efforts were continuing to secure the attendance of a solicitor who had been contacted to advise White.
Two cases
The distinction between the two cases was that the evidence obtained in Mr Gormley's case was as a result of statements made during interrogation whereas the evidence in White's case was "objective forensic evidence", Mr Justice Clarke said.
Under current Irish law the position is while a constitutional right to legal advice in custody has been recognised, it has not yet been found that evidence-gathering must be suspended while legal advice becomes available, he said.
However, the case law of the European Court of Human Rights (ECHR) made clear the conviction of a person by placing significant reliance on admissions made during questioning was impermissible, he said.
In Mr Gormley’s case, he was entitled to legal advice before being questioned, the judge ruled. On that basis, the right to fair process recognised by the Irish Constitution was similar to those recognised in the ECHR and constitutional regimes similar to here.
He said further questions related to the precise parameters of that right to advice would have to be addressed in further appropriate cases.
In White’s case, there was no constitutional entitlement to have legal advice before the taking of objective forensic samples in a minimally obtrusive way provided the law requires or permits the samples to be taken and no genuine choice exists for the suspect such as would reasonably require legal advice, he ruled.
