Supreme Court rules that complex criminal law advice must be given after arrest, not during detention.

[2014] IESC 17

THE SUPREME COURT

107/2011

Denham C.J.

Murray J.

Hardiman J.

McKechnie J.

Clarke J.

Between/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

and

RAYMOND GORMLEY

Accused/Appellant

and

92/2012

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

v.

CRAIG WHITE

Accused/Appellant

JUDGMENT OF Mr. Justice Hardiman delivered the 6th day of March, 2014.

1. I agree with the judgment of Mr. Justice Clarke delivered in these cases. In the circumstances of the cases, however, I wish to

add a few words of my own.

2. Ever since 1984 (and much earlier in the case of certain offences) the major emphasis in Irish criminal investigation has involved

the arrest, followed by the detention for questioning, of suspected persons. This is not an arrest in the ordinary sense of the criminal

law, which is an arrest for the purpose of being charged before a court. It is the involuntary detention of a person who is presumed to

be innocent, and who has not at that stage been accused, for the purpose of criminal investigation. This involuntary detention will be

in a Garda Station, and may, with extensions at Garda discretion, be from twenty-four hours to seven days (and nights) in duration,

depending on the power invoked.

3. It goes without saying that such a person is legally entitled to be treated in a dignified manner. This is first because proper and

considerate treatment is essential to the recognition of his human rights. Secondly, it is because a person held for the purpose of

questioning will not be able to give a good account of himself, or to recognise his own interest, if he is oppressed or undermined by

excessive force, harsh conditions of detention, or a feeling that he is at the mercy of his detainers, dependent on them for the

maintenance of proper and dignified treatment including food, drink, medication, contact with the outside world (including family

members or professional advisers) or otherwise deprived of his autonomy without strict and compelling necessity, the onus of

establishing such necessity being on the jailer.

4. 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: see in the developments surveyed by Mr.

Justice Clarke, and also under the ECHR, to which Ireland is a signatory and which it has incorporated to a limited extent in Irish law

by an Act of 2003.

5. 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.

6. I entirely and specifically agree with Mr. Justice Clarke when he says, at paragraph 9.16:

“Situations should not arise which would place a suspect in a position where the price which they would have to pay for

invoking their right to legal advice prior to interrogation would be an unreasonably lengthened period of incarceration or

the acceptance of other adverse conditions.”

7. And, in the same paragraph:

“The conditions of custody must reflect the fact that the suspect at that stage has not even been charged. Such

conditions must be such as could not objectively be considered in any way oppressive or otherwise such as might lead a

suspect to unreasonably consider waiving any rights which they may have.”

8. These statements must, in my view, be read against the background of actual practice.

9. For one reason or another, the detention of suspects for the purpose of interrogation often occurs very early in the morning. It

may occur properly, discretely, tactfully and with due recognition for arrested persons’ position as presumptively innocent persons.

But it may occur in circumstances of unnecessarily heightened drama, sirens, breaking of doors, disturbance and trauma to spouses

and children, and the rushing of handcuffed suspects out of their houses and into official vehicles. All of the people are presumptively

innocent; most are innocent in fact and are not even charged at any stage.

10. It is necessary to observe that treatment of the kind just described will have no effect whatever on a hardened criminal. On the

other hand, to an innocent person, or a person with little or no prior experience of the criminal law such treatment may be absolutely

terrifying, destructive at least for the time being of their dignity and autonomy and such as may wholly undermine their ability to give

a proper account of themselves. If, in addition, such a person is, shortly after arrival at a garda station, thrust into a cell and locked

in there to await the next development, his position is considerably worsened. Many cells in garda stations are frankly unsanitary and

in a condition such that no normal person would wish to spend time there. Foul smells are not uncommon. They may be in a

permanent state of semi-darkness, lighting, or the extinguishment of lights, being controlled from outside only. The seating or bedding

may be such that no reasonable person would wish to use it. The sense of being in someone else’s power may be utterly

overwhelming especially to an inexperienced or sensitive person, or to an entirely innocent person. The noisy closing of a cell door,

and the turning of a heavy key, leaving one alone in fetid semi-darkness is not an ideal preparation for what may well be the most

important confrontation of one’s life.

11. If the arrest has taken place early in the morning, and the arrested person wishes to avail of professional advice, that decision

may mean spending several hours, perhaps in conditions such as I have described, awaiting the arrival of a lawyer. It must be

recognised that such a prospect may gravely undermine a person’s resolution to see a solicitor, even though it is almost always wise

to take legal advice before attempting to vindicate oneself in this totally alien atmosphere.

12. In my view, the most salient and practically important feature of Mr. Justice Clarke’s judgment is the citation from the judgment of

the Supreme Court of the United Kingdom in Cadder v. Her Majesty’s Advocates [2010] UKSC 43. There, at para. 48, Lord Hope,

having summarised the principal features of the European Convention on Human Rights jurisprudence concluded that:

“the contracting States are under a duty to organise their systems in such a way as to ensure that, unless in the

particular circumstances of the case there are compelling reasons for restricting the right, a person who is

detained has access to a lawyer before he is subjected to police questioning.”

13. I believe that the law in Ireland is identical, as to the need to organise [our system] to take account of detained persons’ rights.

14. Mr. Justice Clarke at para. 9.7 says that:

“The likelihood that the State would be required, as the UK Supreme Court put it in Cadder, to organise its systems to

take account of such rights has been on the agenda for a sufficient period of time that a finding that the constitutional

right to a fair trial encompasses the right to access to legal advice before questioning can hardly come as a surprise.”

15. Mr. Justice Clarke goes on:

“If it be the case that the State has not, to date, organised itself in a manner sufficient to allow questioning to take

place in conformity not just with the Constitution but also with the well established jurisprudence of the ECHR, then it is

those who are in charge of putting such provisions in place who must accept responsibility.”

16. I agree with both of those citations. What I say next is said in the knowledge that it is more than likely that, within a matter of

months, Irish law will provide that the time spent waiting for a solicitor will be added to the period of an arrested person’s detention.

17. It is, at least prima facie, a matter for the legislature and the State to provide for the time and manner of a person’s arrest and

the circumstances of his or her detention. But it is now essential that these matters should be regulated, and if necessary the mode

of regulation altered, in order to vindicate the right to legal advice. In both of these cases, as appears from Mr. Justice Clarke’s

judgment, the solicitors nominated by the persons who were detained attended with remarkable promptitude at odd or unusual times

of the day, and in one case on a Sunday. The State has not seen fit, as other States have, to provide for some system of duty

solicitors, impartial and properly qualified and experienced, to advise a person in such circumstances. Therefore, it is for the arrested

person to nominate his own solicitor. A solicitor is unlikely to be in his or her office at 6 or 7am, awaiting a call from a garda station. A

solicitor contacted early in the morning is likely to be contacted (as in one of these cases) through some contact arrangement such

as an out-of-hours number. He or she is then likely to have to put off his or her existing arrangements for the day: attending at the

office to receive correspondence and sign outgoing correspondence; attending at Court; keeping appointments with clients; attending

meetings with the lawyers for other parties, conferring with Counsel and generally attending to the work of a solicitor’s office. This

may include the need to attend other persons in custody.

18. If a sudden necessity to attend a person detained in a garda station arises, the solicitor will have to make other arrangements for

this ordinary work to be done by someone else, or postponed.

19. All of this means that, where there is an arrest early in the morning followed by an expressed desire to take legal advice by the

arrested person, a period of some hours will necessarily elapse before a solicitor can arrive. This is a direct and predictable result of

early morning arrests.

20. In my opinion, this situation may trigger the need for the State to “organise its systems”. Is it really necessary to bring persons to

a garda station in such dramatic and disorienting circumstances? Is it necessary to do so with no notice at all, so as to make the

delay in taking legal advice inescapable? In some cases this will be necessary, but is this so in every case? Much expense to the

State, and trauma to innocent persons, might be easily avoidable. And if early morning raids are thought necessary from a Garda point

of view, should the detained person pay for this in the form of extended detention periods, to allow legal advice to be taken?

21. If it is not possible to deal with these matters in any other way, is that an adequate reason to lock up a person, perhaps in

conditions such as those mentioned above, for a number of hours simply because their solicitor is not available, at no notice at all, at

perhaps 6 or 7 o’clock in the morning?

22. It must also be recorded, in my opinion, that the professional service required of a solicitor called to attend a person detained for

questioning is a complex and specialised one, requiring not merely a knowledge of the law, but a wide experience in the relevant area.

Ever since the passage of Sections 18 and 19 of the Criminal Justice Act 1984 there has been a capacity for a court to “draw

inferences” depending on the manner in which a detained person responds to questioning. These inferences can be grossly damaging

to the prospects of success at trial even of an entirely innocent person. The provisions mentioned have now been substituted, at

much greater length and with much greater complexity, by Part IV of the Criminal Justice Act, 2007, in particular by Sections 28 to

32. Since this judgment turns on different issues it is not appropriate here to offer an exposition of these Sections. However, the Law

Society Gazette for July 2007 attempted an explanation of these provisions for its professional readership. The exercise of reading this

article and the statutes, cases and regulations it cites will give some idea of the complexity of the advice required, without any

notice at all, of a solicitor advising a detained person.

23. To this complexity must be added the fact that the Solicitor’s advice is typically given to a person who has been arrested without

notice, perhaps having often been woken up for the purpose, perhaps handcuffed, perhaps subject to search, and locked in a cell.

Even a robust person would be greatly prejudiced in his ability immediately to understand complex material and act properly upon it,

by this experience. Some of these persons will be juveniles, some will be in need of medication or other medical or quasi-medical,

assistance, as well as simple re-assurance and stabilisation.

24. Even a cursory survey of the statutory material cited above will bring the reader to the conclusion that this is not material readily

absorbed by a solicitor without specialist skills and experience. The criminal law, and the law of evidence in criminal cases (like many

other legal fields) has become strikingly complex and specialised in recent years. This is demonstrated by the fact that many solicitors

whose principal professional interest lies elsewhere will, when there is time to do so, refer a case of this sort to a professional

specialising in the area. This is nor normally possible in the context of a dawn arrest.

25. The considerable complexity of the area of inferences, in particular, mean that proper advice would normally be given after the

advisor has familiarised himself, as far as possible, with a factual content of what is alleged against his client, and what his client’s

general reaction to it is. There is rarely adequate time, and never an appropriate atmosphere, for the taking of such instructions in

the circumstances of custody in a garda station.

26. I agree with the judgment of Mr. Justice Clarke in distinguishing between a detention for questioning and a detention solely for

the purpose of taking scientific sample about whose taking there is no option for the defendant: they must be given. I should like to

add, however, that the distinction between these two types of custody must be fully and properly explained in ordinary language by

the gardaí. There can be no question of taking a sample under compulsory process and then going on to directly question the

defendant about a crime, or even to “chat” about it, without the defendant’s quite different rights in this area being fully and

accurately explained.

27. In my opinion, it is important that every formal stage of detention in the Garda Station, from the original decision to detain

onwards, and in particular the explanation of the rights to consult a solicitor, should be both audio and video-recorded. In my opinion,

a failure to do this requires explanation: the suggestion that there was an earlier, or different, conversation on this subject before the

recording started, or after it finished, or while the recording machines were turned off, should trigger scepticism on the part of any

court asked to consider it