In 2019, the European Court of Human Rights made it clear in Doyle v Ireland, as it had in other previous cases (see Salduz v Turkey, Dayanan v Turkey, Beuze v Belgium) that the right of access to legal advice at garda stations is part of the right to a fair trial, protected under article 6 of the European Convention on Human Rights, namely, “suspects have the right for their lawyer to be physically present during their initial police interviews and whenever they are questioned in the subsequent pre-trial proceedings.
Such physical presence must enable the lawyer to provide assistance that is effective and practical, rather than merely abstract and, in particular, to ensure that the defence rights of the interviewed suspect are not prejudiced” (see Beuze and Soytemiz v Turkey, 27 November 2018).
In 2014, the DPP permitted solicitors to be present to advise during questioning when so requested by the suspect. It should be stated that, while this was a seismic shift in how solicitors and An Garda Síochána operated in Ireland, this right had been provided for 30 years in England, Wales and Northern Ireland.
To date, there is no statutory framework in place protecting the right of persons detained for questioning to have a solicitor of their choice present during interviews.
From 1 to 13 May 2020, Shalom Binchy Solicitors hosted an online survey asking colleague defence solicitors about their recent experiences of providing legal advice to suspects detained in garda stations during the initial stage of the COVID-19 public-health emergency (March to May 2020).
The findings of the survey (Experiences of Criminal Defence Solicitors in Garda Stations during COVID-19, available on the Shalom Binchey website) are based on the responses of 25 respondents nationwide.
The findings are qualitative in nature and provide a narrative snapshot of the recent experiences of criminal defence solicitors in the early days of the pandemic.
It is clear from the survey that there is no comprehensive or consistent approach being taken to protect the right to legal advice for suspects at garda stations. The panel provides a brief overview of approaches.
Impossible to comply
The current practice leaves solicitors and suspects with a choice of attending the station in circumstances where it is impossible to comply with Government public-health guidelines, or reverting to the pre-2014 practice – that is, no legal advice during questioning.
We have participated in a number of meetings with colleague lawyers in Northern Ireland, England and Europe to learn from their experiences.
EU countries, including Britain, have facilitated remote access at police interrogations and have identified suitable stations that facilitate social distancing.
Colleagues in other jurisdictions have indicated that, while remote access is a positive addition to the resources available to advise clients, it is not without its challenges, including difficulties with connectivity, viewing exhibits and documents during interview, and protecting a client and building trust with them while being at a remove.
The criminal justice watchdog Fair Trials is developing useful toolkits to safeguard the right to a fair trial during the coronavirus pandemic (see www.fairtrials.org/covid19justice).
Rising to the challenge
It is clear from the survey that the current measures are inconsistent and unsatisfactory. Our firm has written directly to An Garda Síochána, the Law Society, the Department of Justice, and the Legal Aid Board outlining the findings of the survey and our key recommendations.
The Law Society’s Criminal Law Committee has been at the forefront in presenting the survey findings and leading discussions with An Garda Síochána to ensure that the rights of suspects in custody are protected, both in the short and medium term, while we learn how to live with COVID-19.
Jurisprudence from Europe is clear that the absence of a lawyer at the initial stage cannot be rectified at a later point in the trial process. It is also clear that An Garda Síochána and solicitors must develop new ways of working that protect against the spread of the virus.
Protocols are required from An Garda Síochána to ensure that protective measures are in place in each garda station and that they are applied in a consistent manner.
Garda stations where social distancing is possible before, during and after interview, and for legal consultations, should be identified and used by An Garda Síochána.
Solicitors also need suitable facilities between interviews. Remote access should be provided for the duration of this public-health emergency, preferably by video-link, and should be part of a suite of options open to gardaí and defence solicitors.
We have all got to find a way to work differently while COVID-19 remains a risk. This should not mean rolling back on the fair-trial rights of suspects. Nor should it mean solicitors having to choose between risking their health and vindicating their clients’ rights.
Now is the time for the solicitors’ profession and An Garda Síochána to work collaboratively to protect and vindicate these rights.