Communicated on 18 January 2018
FIFTH SECTION
Application no. 51979/17
Barry DOYLE
against Ireland
lodged on 12 July 2017
STATEMENT OF FACTS
The applicant, Mr Barry Doyle, is an Irish national, who was born in 1985 and is imprisoned in Dublin. He is represented before the Court by Fahy Bambury Solicitors, Dublin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is currently serving a life sentence for murder.
In the early hours 9 November 2008, the applicant killed a man in Limerick. It was a case of mistaken identity. The applicant had set out to kill another man at the behest of a well-known criminal figure in the city in the context of a feud between criminal gangs. The applicant mistook the victim, Mr S.G., who had no connection whatsoever to the criminal milieu, for the intended target. S.G., who was 28 years old, was walking home when the applicant shot and wounded him on the street. He then pursued his victim into the back garden of a nearby house where he shot him several times, inflicting five wounds in all, including a fatal head wound.
On 24 February 2009 investigating police carried out a search of the applicant’s place residence. They arrested him there at 7.15 a.m. He was brought to a police station shortly before 8.00 a.m. There he was informed of his rights, including a right of access to a solicitor. He requested legal advice from a particular solicitor, whom the police duly notified. At 9.55 a.m. the solicitor telephoned the police station and spoke to the applicant for two minutes.
The first police interview commenced at 10.12 a.m. and lasted fifty minutes. All of the interviews were video recorded, and were conducted in the absence of a solicitor. The applicant did not at any stage request the presence of a solicitor during questioning. It was confirmed during the subsequent proceedings that, in view of police practice at that time, such a request would have been denied.
Another solicitor, Mr O’D., who was acting on behalf of the first solicitor, arrived at the police station at 11.00 a.m. and represented the applicant from that point onwards. The police concluded the first interview at 11.03 a.m. The applicant then had a consultation with the solicitor lasting nine minutes. The second interview commenced at 11.19 a.m. and lasted twenty-three minutes. The third interview started at 12.07 p.m. and lasted one hour and fifty-four minutes. The fourth interview began at 3.00 p.m. and had a duration of one hour and thirty-nine minutes. The fifth interview, beginning at 5.59 p.m., lasted for two hours and seven minutes. The final interview of the day took place between 10 p.m. and 11.42 p.m., a duration of one hour and forty-two minutes. The applicant, who did not request or have any further contact with his solicitor that day, did not make any admissions to police.
The following day, 25 February 2009, the police continued to question the applicant. Three interviews took place in the morning and afternoon, lasting almost five hours in total. The applicant was brought before the District Court, which extended his detention for a further 72 hours. His solicitor was present at the court hearing. The applicant was brought back to the police station where another interview, the tenth, took place between 10.38 p.m. and 11.25 p.m. During this interview, the police informed him that his former girlfriend, G, who was also the mother of his young daughter, had been arrested in Dublin early the previous morning. She was being held in detention and interviewed by police about her knowledge of the killing. He was given certain details about her replies to police questions.
The interviewing of the applicant continued on 26 February 2009. The eleventh interview began at 9.03 a.m. and lasted seventy-two minutes. Questioning recommenced at 12.22 p.m. for a duration of one hours and twenty-one minutes. The police impressed on him that G was enduring the hardship of detention as well as separation from her young daughter on account of the applicant’s refusal to admit to the crime. They also underlined the fact that the victim had been an entirely innocent man. The thirteenth interview took place between 3.02 p.m. and 4.15 p.m. During it, the applicant asked to consult his solicitor. Questioning stopped while the police made contact with the solicitor, who made a telephone call to the police station and spoke to the applicant for two minutes.
The next interview, the fourteenth, commenced at 5.32 p.m. In the first minutes, the police asked the applicant about text messages sent to G around the time of the murder. At some point the applicant asked to speak to his solicitor again. The interviewers replied that he had just spoken to the solicitor, to which the applicant said that he had not been able to speak to him properly. It is not clear from the documents in the case-file when this occurred. The interview continued. At around 6.15 p.m. the applicant again asked to speak with the solicitor, saying that he would answer questions afterwards. A moment later the interview was briefly suspended while one of the officers left the room to fetch a glass of water. He returned at 6.20 p.m. and for the remaining 15 minutes the officers questioned him about his background and his sporting interests. Before ending, they informed him that G was alright. The interview concluded at 6.35 p.m.
As requested by the applicant, the solicitor arrived at the police station at 6.52 p.m. and spoke to the applicant for about ten minutes. According to a memo written by a police officer some hours afterwards, the solicitor then approached the officers conducting the interviews and told them, on an off‑the‑record basis, that the applicant was prepared to admit to the murder provided that Ms G was released. The police replied that they wanted the applicant to tell the truth about the killing. The solicitor conferred again with the applicant for ten minutes and then informed the police that there would be no admissions before Ms G’s release. The police replied that a confession taken in such circumstances would not be accepted in court, as it would be regarded as inducement. The solicitor informed the police that he had advised the applicant to say nothing. He then spoke to the applicant for 4 or 5 minutes, after which he left the police station.
The fifteenth interview commenced at 7.43 p.m. The applicant refused to answer the first two questions posed to him, but then admitted that he had been present at the scene around the time of the murder. At that moment another police officer entered the interview room and stated that the applicant’s solicitor had telephoned the station and wished to speak to him. The interview was immediately suspended to allow the applicant confer with his solicitor, this communication taking about three minutes. When the interview resumed at 7.51 p.m., the applicant admitted to killing the victim. As the interview continued, he provided a number of other details about the crime: how he had been driven to the scene in a particular car; the clothes he had been wearing and which he had burned later; how many shots he had fired, and where; the fact that he had used his right hand to shoot; the fact that the gun had jammed and that he had cleared it by ejecting bullets. He also sketched a map of the crime scene to indicate where each event had taken place. Beyond this, he refused to answer the questions put to him. The interview ended at 9.05 p.m. At the conclusion of the interview, the applicant made a particular gesture. He removed a set of rosary beads that he wore around his neck as a memento of his dead brother, and asked the police give them to the victim’s family.
The sixteenth interview took place between 10.09 p.m. and 11.29 p.m., a duration of 90 minutes. The police repeatedly asked him to explain why he had killed an innocent man, but the applicant refused to answer.
By that time, G was no longer in custody, having been released at 9 p.m. that same day.
There were five further interviews the next day, 27 February 2009, with a combined duration of seven hours and twenty-seven minutes. The applicant continued to refuse to answer the questions put to him about the identity of the intended victim, about his own association with a well-known criminal figure in the city, and about calls and messages to and from his mobile phone around the date of the murder. In the twentieth interview, held that evening, he indicated on a map how the crime had unfolded, and stated that when he caught up with him in the back garden, the victim had said “please stop” just before the fatal shots were fired.
Two further interviews were held on 28 February, lasting two hours and three minutes in all. The police showed the applicant various items of evidence retrieved from the scene of the crime, including unfired bullets, bullet casings, bullets removed from the victim’s body, and items of the victim’s clothing. He made no comment on this or any other question put to him. At 3.15 p.m. police charged the applicant with murder and brought him before the District court.
The applicant pleaded not guilty. He was tried in the Central Criminal Court.
The first trial, in 2011, was inconclusive, the jury failing to reach a verdict.
The second trial commenced on 16 January 2012 and lasted 22 days. At the outset, the applicant sought to exclude the admissions he had made to the police. His challenge was considered by the trial judge in the absence of the jury. This process, a voir dire (a trial within a trial to determine the admissibility of evidence) took ten days. The trial judge viewed more than twenty hours of the video records of the interviews. The police officers involved were called to give evidence and were cross-examined by the applicant’s counsel. The applicant himself did not testify, nor was his solicitor called to give evidence.
On the eleventh day of the trial the judge ruled as follows:
“The defence object to the prosecution proposal to call evidence of various admissions made by Barry Doyle in the course of interviews that took place while he was in custody .... The defence contend that these admissions are inadmissible and rely on three grounds.
1) That the admissions were made involuntarily as a result of a combination of threats, inducements and oppression.
2) That the admissions were made as a result of breaches of the accused’s constitutional right of access to legal advice.
3) The admissions were made as a result of breaches of the requirement of fundamental fairness.
...
The onus of proof in respect of admissibility is on the prosecution and if confessions are to be admitted in evidence the Court must be satisfied beyond a reasonable doubt that it is proper to do so.
...
With regard to the question of legal access Barry Doyle had two consultations with his solicitor while he was in [the police station] prior to making admissions and he was also represented by that solicitor in court when an application was made to extend his detention. The Court does not consider the length of time that either consultation lasted to be relevant in the context of this case. The Court also holds that the [police] were entitled to continue interviewing Barry Doyle in interview 14 when he had complained that a short telephone conversation with his solicitor was not a proper consultation and when his solicitor’s arrival at the [police] station was expected within an hour. The Court is satisfied that there was no breach of Barry Doyle’s constitutional right to legal advice.
In considering the question of oppression the Court observed Barry Doyle in video recordings over a period of in excess of 20 hours and holds that he appeared to be physically and mentally strong throughout. He engaged with the [police] when he chose to do so and refused to answer questions when he did not wish to do so. ...
With regard to the questioning by [the police officers], the Court finds that the interviews were conducted in a careful, patient and structured way in which some of the results of the [police] investigation were gradually revealed to Barry Doyle. The Court also holds that Barry Doyle first began to engage with [the police] in a limited way, essentially as a result of [their] appeal to Barry Doyle’s humanity. This engagement was built on ... and ultimately the accused told the [police] about his involvement in the death of [S.G.].
The Court holds that the interviews conducted by [police] were at all times professional and courteous and involved no oppression. The Court also holds that Barry Doyle was in full control of himself throughout the interviews and holds that he made the admissions that he did because he chose to do so.
With regard to the question as to whether some of the promptings by the [police] to Barry Doyle to the effect that he should tell the truth and not keep [G] away any longer from their child, the question arises as to whether this, or any other related promptings made prior to interview 15 and relating to the release of [G], could amount to an inducement. The first thing to be said is that these remarks must be viewed in the overall context of all that had taken place, which included the various responses of Barry Doyle regarding the death of his brother, the responses regarding his own family, his children by a previous relationship to his relationship with [G], as well as read or taken in the context of the limited answers he had given about living in Limerick and the fact that he had conceded ... that being in custody on suspicion of the murder of [S.G.] was the lowest point in his life. The context also includes the gradual unfolding of the evidence in the case to him and the context further includes numerous appeals to him to tell the truth.
Notwithstanding the context in which they occurred, ... even if these promptings could possibly amount to an inducement when objectively viewed they were not immediately acted on and their affect, whatever it may have been, was dissipated by the consultation Barry Doyle had with his solicitor and his solicitor’s interaction with [the police]. This broke any possible causative link and it is highly relevant that the solicitor told the detectives that Barry Doyle would not admit to the offence and that they would have a bit more work to do.
The Court holds that when Barry Doyle came to make his admissions in interview 15 he made them voluntarily. Accordingly, the Court holds that the admissions were made not as a result of oppression and were not made as a result of any threat or inducement.
Finally, the Court has considered the objection made by the defence that the admissions were made as a result of a breach of fundamental fairness. The Court has considered all the objections in the round and bears in mind [the relevant Supreme Court case-law].
The Court holds that there is no breach of the requirements of fundamental fairness and accordingly holds that the confessions made by Barry Doyle are admissible in evidence.”
The jury was shown excerpts from the video recordings and received transcripts of the interviews. There was other evidence before the court. This included ballistic evidence, evidence about the car the applicant had travelled in, and evidence given by G. There was evidence from another witness, C, who said she had been present when the killing had been ordered, and, the day after the murder, had heard the applicant confirm that he had carried it out.
On 15 February 2012 the applicant was unanimously convicted by a jury of the murder of S.G. He received the mandatory sentence of life imprisonment.
The applicant appealed against his conviction, raising 27 grounds. The Court of Appeal dismissed the appeal on 8 June 2015. Insofar as relevant, the Court of Appeal decided as follows.
It first dealt with the submission that the police had resorted to inducement or threat to elicit his confession to the murder. It agreed with the position taken by the trial judge that the fact that the applicant had consulted with his lawyer immediately before admitting the crime in the fifteenth interview represented a significant interruption in the process of police questioning. Of even greater significance was the fact that the police rejected the proposal of the applicant to confess in return for the release of G, which the solicitor conveyed to the applicant. With no room for ambiguity or misunderstanding in this respect, the response of the police was sufficient to refute the argument about inducement or threat. Nor did the Court of Appeal agree that, during the course of the interviews, the police resorted to implied inducement or threat. It considered that, as found by the trial judge, the transcripts showed the police trying to appeal to his better nature and to his essential humanity. This interpretation of the evidence was borne out by the applicant’s gesture of remorse following the fifteenth interview. It was also supported by the fact that the applicant had retained a degree of precision and control over the admissions he was prepared to make. He provided certain precise details to the police about his own actions but gave nothing away about the other persons implicated in the murder. The fact that he did not ask about G’s release after admitting the murder further suggested that there was no element of inducement. It concluded on this point:
“48. The Court holds that the learned trial judge was entitled to find on the evidence that the prosecution had established that the admissions made by the appellant were not brought about by any inducement or threat. The Court is also satisfied that the judge’s interpretation of the interviews was correct. It concludes that the proposal by the appellant’s solicitor not only dissipated any possible belief in an offer by the [police] but also constituted an approach that actually negated belief in an inducement ...”
The Court of Appeal then considered the argument that the applicant had not been granted sufficient access to legal advice and, as a result, had been subjected to oppression during questioning. The applicant further complained of irretrievable prejudice caused by the continuation of the fourteenth interview despite his request to consult his solicitor, which was not cured but actually compounded by the subsequent consultation. The judgment states:
“69. The appellant had access to his solicitor for as much time and on as many occasions as he or his lawyer requested, in which circumstances it is hard to see how he can say that there was oppression because of the inadequate legal advice availability. The solicitor ... did not ask to be present for the interviewing by the [police]. No doubt, had he asked for that facility, it would have been refused but that simply did not happen and it was not the understanding at the time that a lawyer was entitled to be present. That, however, does not make the detention of the appellant retrospectively unconstitutional on the basis of a hypothetical refusal of a request that was not made.
...
72. It was submitted by the appellant that if a solicitor had been present throughout the interviewing of Barry Doyle, the interviews would have proceeded differently. But it is by no means clear that that would have been of any great assistance to him; the questions would still have been asked and he could well have been in the same situation of deciding that he was going to confess to the extent, limited in degree as it was, that he actually did in interview 15 and followed up in later interviews.”
The Court of Appeal again referred to the fact that all interviews had been recorded, so that the trial judge was able to see precisely what had happened during them. The police had respected the custody regulations, and while they had repeatedly questioned him they had permitted him breaks and access to a solicitor. There was no sign of oppression or unfairness.
The Supreme Court granted leave to appeal, identifying three issues for examination, one of which is of central relevance to the present application:
“Whether or not the appellant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present, prior to and during the 15th interview with the [police], during which admissions were alleged to have been made. This raises the question of whether the right to have a solicitor present during questioning is a matter of right of the detained person, or a matter of concession by the [police].
Whether the matters set out in the applicant’s application, under the heading ‘relevant facts considered not to be dispute’, or any of them, constituted threats or inducements to the applicant, and calculated to extract a confession from him. This is a matter not decided by the court of trial, or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had ‘dissipated’, or ‘worn off’, by the time of the admissions relied on by the State, as held by the trial judge, and whether or not there was any evidence on which it could have been determined that the effect of these threats, or inducements, (if any), had ‘dissipated’, or ‘worn off’, by the time of the alleged admissions.”
On 18 January 2017 the Supreme Court dismissed the appeal, by a majority of six to one. Six members of the court gave judgment.
In the first judgment, the Chief Justice limited her remarks to the first issue above. She recalled that reasonable access to a solicitor was a constitutional right for persons in detention. As a matter of constitutional law, the concept of basic fairness of process applied from the time of arrest, as the Supreme Court had recently affirmed in a judgment that took into account the relevant Convention jurisprudence – DPP v. Gormley and DPP v. White, [2014] IESC 17 (“Gormley”). Since the question of the presence of a solicitor during questioning did not arise on the facts in Gormley, any statements in the judgment on this matter were obiter. She continued:
“15. ... [I]t is clear that the appellant requested access to a solicitor and obtained access to a solicitor. He had access to legal advice. He had access to the solicitor before the important Interview 15, and he had access, at the solicitor’s request, during that interview, when the solicitor phoned in and sought to speak to the appellant as Interview 15 was underway. The interview was interrupted to enable the appellant to speak to his solicitor. There was no request to have the legal adviser present during the interview.
16. I a.m. satisfied that the constitutional right of access to legal advice was met by the attendance of the appellant with his solicitor prior to Interview 15, and indeed by the telephone call from his solicitor which interrupted Interview 15.
17. The constitutional right is a right of access to a lawyer. The right is one of access to a lawyer, not of the presence of a lawyer during an interview.”
[emphasis in the original]
She considered that the requirements of the Convention had also been met. Regarding the second issue in the appeal she concurred with Charleton J (see below).
The second judgment was given by O’Donnell J, who also confined his analysis to the first issue. He too regarded statements in Gormley about a more general right to the presence of a solicitor during detention as obiter. Referring to relevant Convention case-law he observed:
“8. Given the fact that the jurisprudence of the ECtHR has to date largely been developed in the context of civil law systems with early supervision of investigation by a magistrate, it cannot be said that it has been definitively determined that the Convention requires a bright-line rule that in a common law system, an accused person must have not just access to, but the assurance of the presence of, a lawyer during any detention. This is particularly so because, until now, the Convention jurisprudence has not adopted any absolute rule that evidence obtained in breach of a Convention right must be inadmissible, but rather has applied a test of considering the overall fairness of the proceedings.”
In his view, the legal argument for adopting an absolute rule of presence of a lawyer as a matter of constitutional principle therefore rested almost entirely on the reasoning of the Miranda decision of the US Supreme Court. However, that authority had not been followed in Irish jurisprudence in the fifty years since it was decided. In the present case, the voluntary nature of the confession was not in doubt, and the admission of the applicant’s statement had not been held to be unfair. Were a bright-line rule to be adopted, it would have the potential to exclude key evidence in the shape of statements given voluntarily without the benefit of legal advice in circumstances otherwise beyond criticism. He stated:
“14 ... I would for my part stop short at this point of finding that in addition to the videotaping of interviews, the access to and advice from a lawyer (provided if necessary by the State), and the requirement that only statements found to be voluntary beyond reasonable doubt be admitted in evidence, the Constitution nevertheless requires and perhaps has always required, the presence of a lawyer at all times during questioning, as a condition of admissibility of any evidence obtained.”
McMenamin J gave the third judgment. He recalled that at the time of the applicant’s arrest and trial, the relevant precedent of the Supreme Court, Lavery v. Member in Charge Carrickmacross Garda Station [1999] 2 IR 390, did not accept that a suspect was generally entitled to the presence of a solicitor during police questioning.
He rejected the argument that the applicant’s will had been sapped, notably during the fourteenth interview. While the police had continued to question him even after he had requested another consultation with his solicitor, nothing had been elicited in that interview that had carried through to the next interview. There was no basis to consider that the applicant’s position, at that point in time or subsequently, had been irretrievably prejudiced.
As to the argument that, in light of the Supreme Court’s decision in Gormley and also Convention and US case-law, there was now a right to have a solicitor present during police questioning, McMenamin J held that it could not succeed in the instant case. He stated:
“46. ... [W]hat I think is imperative to bear in mind, is that here (subject to the point made regarding the immaterial Interview 14), the appellant was granted access to a solicitor at the outset of his custody, during his custody, prior to the relevant interview, and even during that interview. His limited confession was that he accepted that he had killed [S.G.]. Unavoidably, the appellant must face the fact that the logic of what is sought to be applied here is a retrospective recognition and application of a then unrecognised constitutional right to have a lawyer present throughout interviews.”
[emphasis in the original]
He pointed to fatal flaws in the applicant’s argument. The right contended for was not the law, even after Gormley, although it might be seen as a possible logical consequence of that judgment. There was no evidence that the physical absence of the solicitor was a causative factor in the applicant’s confession. In the absence of direct evidence from the solicitor, it could only be concluded that the applicant had confessed out of deliberate choice, which conclusion was supported by some of this statements in the later interviews. He continued:
“47. ... Because this is an appeal within a criminal process, in order for the appellant to succeed, the Court must find that there was a ‘deliberate and conscious’ denial of the appellant’s constitutional rights.
48. There, I would hold, the proposition becomes entirely unsustainable. How, on the basis of all the established jurisprudence, can it be argued that there was a deliberate and conscious violation of a right then unrecognised, either under the Constitution, or, as I seek to explain later, under the Salduz judgment, or any of its successors? The proposition stands logic on its head. It is based on an unsustainable premise which must inevitably lead to a flawed conclusion. ‘Deliberate and conscious’ necessitates awareness, and the deliberate ignoring of an established right.”
The judge continued that he would be prepared, in light of recent developments in law and procedures, to recognize in future cases a right under the Constitution to have a solicitor present during police questioning. He then referred to a number of relevant ECtHR judgments, in particular the case of Salduz v. Turkey [GC], no. 36391/02, ECHR 2008. He considered that the facts of the present case were very different, and that the two must be distinguished. He added that, for the purposes of Article 6 of the Convention, the relevant issue was always whether criminal proceedings as a whole had been fair. He agreed that prompt access to a lawyer was a vital protection for the vulnerability of suspects in police custody, which had been respected in the present case. He considered that the Salduz judgment did not establish any bright-line rule excluding the use of any statement made during questioning in the absence of a lawyer. Referring to the two‑stage test set out in Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, ECHR 2016, he considered that the first limb (whether there were compelling reasons for restricting access to legal advice) did not arise in the present case. As for the second limb (impact on the overall fairness of the proceedings), he said:
“58 ... There is nothing in the instant case to suggest that the evidence which was obtained was unreliable or inaccurate. It was corroborated. It cannot be said that there has been a violation of any other Convention article. There is no suggestion that the appellant actually retracted his statement. Perhaps the most graphic image emerging from the transcripts is the fact that, at interview, the appellant apparently wore a set of rosary beads around his neck, and after having confessed, later gave these rosary beads to the [police] to be given to [the victim’s] mother. The appellant was convicted by a jury, after the jury had been fully charged regarding the standard and onus of proof in criminal case, that is to say, beyond reasonable doubt. There was no procedural unfairness in the procedure of the trial. ...
59. ... [I]t cannot now be successfully argued that the position of the appellant was “irretrievably prejudiced”. What is in question here is, of course, an ex post facto analysis of the conduct of the trial court, and the appeal, and how the evidence was treated. But throughout, the appellant had the opportunity to challenge the authenticity of the evidence, and oppose its use. The exclusionary rule, as it stood, was applied. There was substantial other evidence which supported, and corroborated, the confession. In fact, that corroborative evidence would, in itself, have been sufficient to convict the appellant.
60. I would hold, therefore, this Convention argument on the confession cannot succeed either. I am not persuaded that the right of a lawyer’s presence throughout all interviews is recognised in ECtHR jurisprudence, either in 2009, or now. Thus, such a right cannot be relied on by the appellant, nor is it cognisable in our law.”
On the other issue in the appeal, and applying the three-strand test for inducement in domestic law, MacMenamin J considered, first, that the words used by the police concerning the situation of G were indeed objectively capable of amounting to a threat or a promise. However, the second element of the test was not satisfied. It had not been shown that the applicant had subjectively understood the words used as an inducement to confess. Lastly, the applicant had not shown that his confession was the result of the words used by the police. The question whether the solicitor’s intervention had dissipated the effect of the inducement was one of fact, and there was no basis to disturb the finding reached by the trial judge based on the real evidence before him.
Charleton J, with whom Laffoy J concurred, dealt first with the inducement issue. He reviewed in detail the applicant’s evidence and the circumstances in which it was taken by police. He considered that in the thirteenth interview the references to G’s situation constituted a clear inducement to confess. However, the fact that he was granted access to independent legal advice from his chosen solicitor was important. He then referred to several factors – including the evidence of remorse, the fact that the applicant limited his admissions to his own role, the fact that he did not retract his statement, and the gesture involving the beads – which constituted material on which the decision of the trial judge could reasonably be made. The decision could not be disturbed.
On the issue of access to a solicitor, Charleton J noted that the Court of Appeal had followed the existing Supreme Court case-law to the effect that there was no constitutional right to have a solicitor present during questioning. The Gormley case had not established such a right, since this point had not arisen on the facts of that case. While the fundamental requirement of basic fairness applied from the time of arrest, it did not necessarily follow that all of the safeguards of a fair trial, especially legal representation, must also be applied in full from the outset.
As for the Convention, while there was ample authority in the relevant case-law requiring access to legal advice from the time of a person’s arrest, there was none stating that there must be a solicitor in the room during the questioning of suspect. The requirement of fairness could be satisfied by other safeguards. The applicant’s argument was partly based on the change of police practice after the Gormley judgment, permitting the solicitor to be present during interviews, but that was not relevant in answering the question of law posed in the present case. The main authority relied on by the applicant was the U.S. Supreme Court decision in the Miranda case which, while a persuasive authority, should not be unthinkingly followed. Circumstances in Ireland, and the relevant safeguards applying to detention, were entirely different to those in the USA in the 1960s. The safeguards in Irish law had been closely and carefully constructed over decades of experience. In particular, the secrecy of police interviews had given way to transparency due to systematic video recording. Thus the trial judge had been able to observe for himself the manner in which the applicant had been questioned.
He identified the rationale of the Miranda decision and then noted the significant differences between circumstances and context of that case and the present one. In particular, detainees were granted a series of important safeguards in Irish law, especially the video recording of interviews. In light of this, it could not be concluded that it was a necessary part of the constitutional right to a trial in due course of law that the lawyer must be present during the interviewing of the suspect.
O’Malley J agreed that the appeal should be dismissed. However, she took a different approach to MacMenamin and Charleton JJ in relation to the implications of the right of access to legal advice. She agreed with the conclusion of MacMenamin J that there was no causative link between the applicant’s admissions and the absence of the solicitor during questioning, and that this was sufficient to dispose of the issue in the present case. However, she considered that the issue might properly arise for consideration in another case.
On the threat/inducement issue, she did not consider it illegitimate for the police to have informed the applicant of the arrest of G. The question was whether illegitimate use had been made of that situation. While it would be certainly possible to form an objective view that the remarks of the police were capable of being understood as a threat to detain G until the applicant confessed, there was no direct evidence of the applicant’s subjective understanding of the situation. While it was the applicant’s right not to testify at trial, and no adverse inference could be drawn from his choice, it did not mean that there could be no consequences in terms of the decision to be made on the issue by the courts. In deciding the issue, the trial judge was entitled to draw such inferences from the evidence as were rationally available. The question therefore was whether he had been entitled to draw the inference that the effect of any threat or inducement was dissipated by the consultation with the solicitor. In the absence of evidence to the contrary, it must be open to the trial court to proceed on the assumption that when a person in detention consults a solicitor, the latter will advise them properly and correctly as to their legal rights. It was thus to be presumed that the solicitor had informed the applicant that the police had rejected his offer, displacing any belief the applicant may have had that by confessing he could bring about the release of G. As noted in police records, the solicitor had then advised the applicant not to incriminate himself. Neither the applicant nor his solicitor had complained about the conduct of the interviews. With no evidence to the contrary, the trial judge had been entitled to find that any threat or inducement up to the fourteenth interview had been dissipated before the applicant finally confessed in the following interview.
Turning to the issue of access to legal advice during questioning, she saw some strength in the argument that this should now be regarded as a right flowing from the constitutional right to a fair trial. The State had in effect anticipated this by modifying police practice in this respect. She noted that the issue might arise in the context of statutory provisions that permit the drawing of inferences from a failure to answer questions. As this was not an appropriate case to reach a definitive view, she reserved her position on the question. She stated:
“71 ... I consider that the question of the existence of such a right does not truly arise on the admittedly unusual facts of this case.
72. Largely, this is because of the unusually central role, discussed above, taken by [the solicitor] in the events immediately preceding the admissions. Prior to that, it is true that the appellant did not see his solicitor for any great length of time. However, it is also clear that he was aware of his right to see him; that he saw him when he wanted to, for as long as he wanted; and that he was under no pressure to relinquish or curtail his right of access. It is also clear that while he answered some questions in some interviews he did not incriminate himself prior to Interview No.15.
73. I do not accept the contention that the statement by the appellant (in Interview No. 14) that he would answer questions when he saw his solicitor demonstrates that he was ‘irretrievably prejudiced’ by the [police] decision to continue asking questions despite the request for the solicitor. I cannot see that it should be interpreted as a decision to incriminate himself - he committed himself to nothing, and certainly not to admitting guilt. There is no evidence that his will was overborne to any extent, still less to the extent that a consultation could not assist him.
74. The actual admissions came about in the circumstances discussed above. The role of the solicitor was, in fact, far more central than would be envisaged where a lawyer is present in the interview room - the [police] and the appellant were actually communicating through him, rather than directly with each other. He had complete privacy to advise his client while carrying on the discussion with the [police] and also a greater degree of control than would be normal over what was said on behalf of the client and how it was presented. For the reasons already discussed, therefore I consider that not only was the trial judge entitled to conclude that the admissions were the result of a fully voluntary decision by the appellant, but that there is nothing to indicate that the exercise of the right now contended for would have altered the situation in any material respect.”
McKechnie J dissented. On the issue of inducement, he considered that the references made by police to the situation of G were such as to constitute, objectively, an inducement for the applicant to admit the crime, and that, subjectively, the applicant had understood them in this way. As for the third element of the test, causation, he did not consider that the exchanges that took place between the fourteenth and fifteenth interview necessarily led the applicant to understand that a possible quid pro quo had been ruled out by the police. Rather, it was entirely possible that, going into the fifteenth interview, the applicant continued to believe that G’s release was dependent on a confession, and that he had admitted the crime on that basis. Given this realistic possibility, the applicant was entitled to benefit from the inference most favourable to the presumption of innocence. It followed that the prosecution had not discharged its burden of proving that the applicant’s confession was voluntary. This evidence should therefore have been excluded, and the applicant should be granted a retrial.
On the issue of the presence of the solicitor during questioning, McKechnie J first rejected the applicant’s argument that the amount of contact he had had with his solicitor during the period of detention did not amount to reasonable access. The real question at issue was if, where reasonable access to legal advice has been afforded, a solicitor’s attendance at the interview process was as of right or by concession. He referred to the recent change of police practice in this respect and observed:
“136. [A]lthough this newly-established practice is not definitive in the legal analysis of whether such a right exists, nonetheless the shifts which I have described, being both potent and influential, are significant and should not be underestimated. Reality, as it now stands, must be faced up to.”
Turning to Convention case-law, he analysed the Salduz judgment and considered that it did not directly support the applicant’s argument. He considered, however, that this Court’s interpretation of Article 6 had evolved since then, citing the following cases: Dayanan v. Turkey, no. 7377/03, 13 October 2009; Navone and Others v. Monaco, nos. 62880/11 and 2 others, 24 October 2013; A.T. v. Luxembourg, no. 30460/13, 9 April 2015; Simons v. Belgium (dec.), no. 71407/10, 28 August 2012; and Brusco v. France, no. 1466/07, 14 October 2010. In drawing out the main points of this case-law he stated:
“150. ... [I]t seems clear that the judgments have made express reference to a suspect’s right to have a lawyer present during the interview process. Thus on one reading it could be said that this right has already been clearly established. However, I am not aware of any decision reflecting the particular facts of Mr. Doyle’s situation (...) in which the Court has definitively declared the existence of such right.”
He next referred to Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. Under the Directive, the right of suspects or accused persons for their lawyer to be present and to participate effectively in during questioning is provided for. Although the Directive did not apply to Ireland, it “illuminate[d] the directional focus” of other EU Member States, and “offer[ed] further evidence of a prevailing trend amongst fellow members of the Union”. Moreover, the Directive had been referred to by in A.T. v. Luxembourg (cited above). In addition, he took note of the position of the Committee for the Prevention of Torture, which considered that the right of access to a lawyer should include the right to legal assistance during questioning (CPT/Inf (2011) 28, at paragraph 24). He then summarised the position in the different jurisdictions of the United Kingdom, noting that in each of them provision was made for solicitors to be present during questioning. In view of all of this material, he saw a “significant shift in the acknowledgment of this right across other diverse legal regimes”.
In his conclusion he stated:
“163. ... I have decided that the constitutional entitlement to a trial in due course of law entails the right of a person, detained in a [police] Station, to have a solicitor present during questioning if he or she so requests. This conclusion is based on a consideration of the events, factors and prevailing trends outlined in this judgment, as well as a firm belief that such a step is a necessary but proportionate one in furthering the protection or safeguards which such persons should enjoy during custodial detention. The time has now come for a clear acknowledgment that such a right exists ...”
Regarding the Convention case-law he observed:
167. ... I believe that on balance the existing case law of the ECtHR is already to the effect that the Convention does in fact require the presence of a lawyer during questioning. The judgments [referred to above] and many others, all make express reference to the existence of such a right in clear-cut and deliberate terms. To the reservation that this position has not been definitively spelled out, I believe that if the settled and current trend of dealing with the availability of legal protection should continue, then it is more likely than not that the outcome of any case where the precise point was directly in issue would support the conclusion which I have arrived at. Of course this anticipation may be wrong, but, even if so, the existing state of jurisprudence is of such force in this regard that such of itself is highly influential in calling for such a right. ...”
He then set out a series of considerations in support of according constitutional status to the right to the presence of a solicitor during questioning: the substantial length of detention permitted by law, allowing for multiple interviews throughout the day over a number of days; the daunting and frightening effect that of detention may have on many people; even where the accused is a hardened criminal, the importance of preserving their rights too; the increasing complexity of the criminal law; the limits of judicial control, which prohibits rather than prevents abuse. He did not consider that existing safeguards were sufficient to overcome the inequality in the interview room. While the recording of interviews permitted judicial scrutiny of the actions of the police, he was
“not convinced that this ex post facto supervision is an adequate surrogate for the presence of a solicitor at the interview itself.”
He continued:
“179. The cardinal rule relating to the requirement of voluntariness of confessions is so deeply entrenched in this jurisdiction as to hardly merit restatement; it goes to the essence of the privilege against self-incrimination. Given the centrality that questioning has assumed in the evidence-gathering process, and in light of the critical importance routinely attached to confessions at trial, I take the view that stronger safeguards are necessary to fully vindicate the privilege against self-incrimination of the interviewed suspect. In light of the wide range of factors which potentially vitiate the voluntariness of an inculpatory statement - threats, promises, oppression, unfairness and more - often involving, as they do, a marginal judgement call either way on the point, I believe that what is herein asserted is an essential protection of that privilege. Regardless of the degree to which a solicitor takes part in the process, I am convinced that even a mere presence would have a telling impact on both the client’s position and the conduct of the interrogation. Those who suggest otherwise fail to appreciate the chilling effect which detention and interview has on a great number of people. Lawyers experienced in criminal practice will readily vouch to the tension and highly-charged atmosphere of the interview process.”
He further stated:
“182. The admissibility of confessions has assumed an almost transcendent importance in many modern trials, this because of the sheer weight and probative value of such admissions, which are so frequently alleged to have been involuntarily made. In this regard, rather than having contentious, costly and time-consuming legal argument after the fact over whether this comment overbore the will of the suspect, or that question rendered the confession involuntary, the admissibility of these central pieces of evidence will be much more readily established where the highest protection has been afforded to the rights of the suspect during the interview process.
183. I therefore believe that in order to fully protect and vindicate the rights of a suspect, it is necessary that there be a solicitor present during [police] interrogation. This is of such fundamental importance that, in my view, it is a requirement of the constitutional imperative that a criminal trial be conducted in due course of law.”
B. Relevant domestic law and practice
1. Case-law
In its judgment in this case, the Supreme Court referred to the existing case-law on the question whether a suspect is entitled to the presence of a solicitor during questions.
In the case The People (DPP) v Pringle (1981) 2 Frewen 57, it was held by O’Higgins CJ that, in the absence of an express guarantee against self‑incrimination in the Irish Constitution, it was not possible to infer a right to have a solicitor present during questioning.
In the case Lavery v. Member in Charge, Carrickmacross Garda Station (cited above), O’Flaherty J affirmed that position:
“Counsel for the State submitted to the High Court Judge that in effect what [the solicitor] was seeking was that the [police] should give him regular updates and running accounts of the progress of their investigations and that this was going too far. I agree. The solicitor is not entitled to be present at the interviews. Neither was it open to the applicant, or his solicitor, to prescribe the manner by which the interviews might be conducted, or where.”
Above all in the present case, the Supreme Court judgment DPP v. Gormley and DPP v. White (cited above) was repeatedly referred to. The core issue in that case, as delineated in the judgment of Clarke J, was:
“whether a person arrested on foot of serious criminal charges is entitled to the benefit of legal advice prior to the commencement of any interrogation and prior to the taking of any samples for the purposes of forensic examination.”
He commenced his analysis of the issue with the following remarks (as relevant for present purposes):
“8.1. The first real question of principle which this Court, therefore, now has to consider is as to whether the entitlement to a trial in due course of law, guaranteed by Article 38(1) of [the Irish Constitution], encompasses an entitlement to have access to legal advice prior to the conduct of any interrogation of a suspect arrested .... If that proposition is accepted at the level of general principle then many more questions of detail would, of course, arise. Questions such as ... the extent to which a lawyer is entitled to be present during the questioning as well as being entitled to advise the suspect prior to questioning... . By no means do all of those issues arise on the facts of these cases.”
On the main question raised in the case he stated:
“8.7. The first issue which perhaps arises is as to whether it is appropriate to regard any part of the investigative stage of a criminal process as forming part of a ‘trial in due course of law’. It is clear that the ECtHR takes such a view. It must, of course, be recalled that, in many civil law countries, there are formal parts of the investigative process which are judicial or involve prosecutors who have a quasi-judicial status. The line between investigation and trial is not necessarily the same in each jurisdiction. Furthermore, it is important to emphasise a potential distinction between a formal investigation directly involving an arrested suspect and what might be termed a pure investigative stage where the police or other relevant prosecuting authorities are simply gathering evidence.
8.8. ... I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available. Thereafter the suspect has been deprived of his or her liberty and, in many cases, can be subjected to mandatory questioning for various periods and, indeed, in certain circumstances, may be exposed to a requirement, under penal sanction, to provide forensic samples. It seems to me that once the power of the State has been exercised against a suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage. It seems to me to follow that the requirement that persons only be tried in due course of law, therefore, requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in State (Healy) v. Donoghue applies from the time of arrest of a suspect. The precise consequences of such a requirement do, of course, require careful and detailed analysis. It does not, necessarily, follow that all of the rights which someone may have at trial (in the sense of the conduct of a full hearing of the criminal charge before a judge with or without a jury) apply at each stage of the process leading up to such a trial. However, it seems to me that the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law. In that regard it seems to me that the Irish position is the same as that acknowledged by the ECtHR and by the Supreme Court of the United States.”
Later in his judgment he observed:
“9.10 ... [T]he question as to whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of this case for the questioning in respect of which complaint is made occurred before the relevant lawyer even arrived. However, it does need to be noted that the jurisprudence of both the ECtHR and the United States Supreme Court clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present.”
In a concurring judgment, Hardiman J stated:
“For many years now judicial and legal authorities have pointed to the likelihood that our system’s option for the very widespread questioning of suspects who are held in custody for that purpose, was very likely to attract a right on the part of such suspects, not merely to be advised by lawyers before interrogation, but to have lawyers present at the interrogation, and enabled to intervene where appropriate. This has now come to pass in countries with similar judicial systems... and also under the European Convention on Human Rights (‘ECHR’)...
It is notable, however, that Mr. Gormley has not asserted that right to its full extent but has asserted only a right to have a lawyer to advise him, in custody, before the questioning starts. Manifestly, however, it will not be long before some person or other asserts a right to legal advice in custody on a broader basis. I say this in explicit terms in order that this may be considered by those whose duty it is to take account of potential developments.”
2. Practice
Following the Gormley case, and acting on the advice of the Director of Public Prosecutions, the Irish police force changed its practice so as to permit a solicitor to attend during the questioning of a suspect. In April 2015 it published a code of practice on the subject, setting out in detail the manner in which police officers should give effect to a suspect’s entitlement to the presence of a solicitor.
In December 2015, the Law Society of Ireland published a document entitled “Guidance for Solicitors Providing Legal Services in Garda Stations”. The document sets out advice for solicitors, in light of the relevant law and the police code of practice.
COMPLAINT
The applicant complains under Article 6 § 3(c) of the Convention that he was not entitled to have a solicitor present during his interrogation, representing a failure by the respondent State to vindicate his right to a fair trial. In the absence of a solicitor, his right to silence and right not to incriminate himself were eroded. The refusal to exclude his admissions effectively deprived him of any defence at trial.
QUESTIONS TO THE PARTIES
1. Was the applicant provided with access to a lawyer as from the first interrogation by the police (see Salduz v. Turkey [GC], no. 36391/02, § 55, ECHR 2008)?
Details regarding the applicant’s access to a lawyer – dates, time, duration, nature, etc. – are provided in the application and in the decisions of the domestic courts (see appended summary). The respondent Government is invited to supplement the relevant information where necessary in as clear and detailed a timeline as possible in order to facilitate the work of the Court.
2. In the circumstances of the present case, and having regard to the relevant case-law of the Court in relation to Article 6 §§ 1 and 3 (c) of the Convention, was the applicant entitled to have his lawyer present during the police interviews?
3. Assuming that the applicant’s right of access to a lawyer was restricted in the instant case, with reference to the factors enumerated non‑exhaustively in the Court’s case-law (see in particular Ibrahim and Others v. the United Kingdo [GC], nos. 50541/08 and 3 others, § 274, ECHR 2016), was the overall fairness of the trial irretrievably prejudiced?
APPENDIX
Sequence and duration of police interviews and solicitor consultation
Tuesday 24 February 2009
7.15Applicant arrested at his place of residence.
7.40 Arrives at police station. Requests legal advice.
9.55First consultation with solicitor by phone, about 4 minutes (see judgment of Charleton J, § 37)
10.12-11.031st interview (50 minutes)
Applicant then consults in person with solicitor for about 9 minutes (Charleton J, § 39)
11.19-11.422nd interview (23 minutes)
12.07-14.023rd interview (115 minutes)
15.00-16.39 4th interview (99 minutes)
17.59-20.07 5th interview (127 minutes)
22.00-23.42 6th interview (102 minutes)
Wednesday 25 February 2009
9.12-11.127th interview (120 minutes)
12.00-14.108th interview (130 minutes)
16.08-16.579th interview (48 minutes)
Applicant brought before District Court in the evening to extend period of detention. Solicitor attends.
22.38-23.2510th interview (47 minutes)
Thursday 26 February 2009
9.03-11.1211th interview (72 minutes)
12.22-13.4312th interview (81 minutes)
15.02-16.1513th interview (72 minutes)
17.13 Applicant consults solicitor by phone, 2 minutes
17.32-18.3514th interview (63 minutes) Request made during this interview for further consultation.
18.52Arrival of solicitor at station. Discusses with applicant for 10+10+4 minutes (Charleton J. § 39).
19.4315th interview begins.
2/3 mins laterSolicitor telephones to speak to applicant, duration of call about 3 minutes.
19.51-21.0515th interview continues (about 77 minutes)
22.09-23.3916th interview (90 minutes)
Friday 27 February 2009
10.27-11.5617th interview (88 minutes)
12.38-13.4018th interview (61 minutes)
15.44-18.1119th interview (147 minutes)
20.10-21.2520th interview (84 minutes)
22.03-23.1021st interview (67 minutes)
Saturday 28 February 2009
10.01-11.2022nd interview (79 minutes)
12.56-13.4123rd interview (44 minutes)
Total duration of interviews: 31 hours 26 minutes.
Total duration of legal consultation: 42 minutes approx.
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