ICCL campaigns for better protection of people’s rights when they are in Garda custody. These rights include:
- the right to interpretation and translation;
- the right to information;
- the right of access to a lawyer;
- the right to the presumption of innocence and of the right to be present at the trial;
- procedural safeguards for children who are suspects or accused persons;
- the right to legal aid for suspects and accused persons.
In 2018, we carried out empirical research examining the rights of suspects and accused persons in nine EU Member States. We identified a number of gaps in the implementation of EU Procedural Rights Directives. Read our report Inside Police Custody here.
We then revisited these Directives in an EU-funded project, From law to practice: Strengthening procedural rights in police custody.
From law to practice: Strengthening procedural rights in police custody
Background
In 2011 a package of six EU Directives aimed to set up common minimum standards and to address fundamental rights in police custody. These rights include the right to interpretation and translation; the right to accessible information; the right of access to a lawyer; the right to the presumption of innocence and the right to silence and the right to legal aid for people suspected of crime.
Most of the Directives have been transposed into national law across the EU. However, Ireland has opted in to only two of the six. Even under the two which have been transposed (information and interpretation/translation) challenges remain. Research across the bloc has demonstrated that even when legislative and other measures are adopted to give effect to the Directives, this does not automatically mean that they are adequately implemented in practice. This project aimed to examine that implementation gap and to identify and explore best practices across the EU that could be easily transposed in Ireland.
We are advocating for the Government to opt in to the remaining four Directives. Not only do we need to establish for example the right to a lawyer at a Garda station in law – there needs to be a system in place to ensure that this right is effective in practice. This project looked at four thematic areas:
- Right to information;
- Access to a lawyer;
- Legal aid;
- Audiovisual recordings.
Right to information
In order to have meaningful access to justice for all persons suspected of crime – and in particular vulnerable suspects – it is crucial that people who are in Garda custody understand their rights.
On arrival at a Garda station you are handed a Notice of Rights which outlines all of the rights that are owed to you. However, it is written in very complex legal language in small font. Children, persons with literacy difficulties and intellectual disabilities are over-represented in the criminal justice system and may struggle to understand this Notice. However, promising initiatives have been developed to address this issue.
In Belgium, the letter of rights was redrafted in plain language and in Austria a computer-assisted legal instructions tool supports police in the oral notifications of rights. Fair Trials produced plain-language Letters of Rights in 13 EU languages, including English. In Ireland, an Easy Read Notice of Rights (ERNR) has been developed by academics under the leadership of Prof. Gautam Gulati at the University of Limerick.
These innovations aim to provide enhanced and easy to understand oral and written information which is crucial and will assist in bringing Ireland in line with its obligations under Article 13 of the United Nations’ Convention on the Rights of Persons with Disabilities which guarantees a right to equal access to justice for persons with disabilities and Article 3 of EU Directive 2012/13/EU on the right to information in criminal proceedings which enshrines the right to accessible information which takes into account particular needs of vulnerable suspects.
The right to information is the gateway right in custody. It is the right that provides suspects with information about all of the rights owed to them from access to a lawyer, legal aid, interpretation and translation, and the right to silence. When a suspect’s right to information is breached it has a knock-on effect on every other right in Garda custody, and suspects may lose out on key procedural safeguards such as having a solicitor present during questioning.
Access to a lawyer
If you find yourself in Garda custody and you don’t have the phone number of a solicitor you know, the Gardaí will contact a solicitor on your behalf. Solicitors at Garda stations play a crucial role in advising and providing active defence: preventing miscarriages of justice, ensuring an equality of arms, protecting the right to silence and providing support for vulnerable suspects.
The right to consult a solicitor and have them present in the interview room is currently an informal arrangement due to become law soon. However, having a right on the statute books doesn’t automatically guarantee effective legal representation. Many people in the stressful confines of Garda custody don’t understand the importance of a solicitor and are put off by having to wait for a solicitor to arrive.
In other countries the issue of suspects waiving their right isn’t an issue as there is mandatory legal representation for some categories of suspect (e.g., in Romania) or for all suspects (e.g., in Spain). Meanwhile, in Belgium an effective online appointment platform randomly selects the best qualified available lawyer depending on the person’s needs and collects important data on who is availing of legal representation and who is waiving this right (only children cannot waive the right in Belgium).
Ireland has a lot to learn from other jurisdictions where the right is more established and innovative tools have been used to ensure the right is timely and effective.
Legal aid
Access to legal aid goes hand in hand with the right to access a lawyer. The Garda Station Legal Advice Scheme provides legal aid to persons in custody. However, currently, to qualify you must receive social welfare or earn under €20,316/year (gross). This is less than the average minimum wage salary and excludes many people who may earn over this sum but still cannot afford their own solicitor. This threshold must be urgently removed so everyone who needs it is granted legal aid.
In Spain the right to legal assistance in custody is constitutionally guaranteed to every person in custody. This is optimal. However it is important that lawyers arriving to the high-stakes environment of a police station are adequately trained and provide a quality service to those in receipt of legal aid. This is ensured in the Netherlands through peer review and supervision. In Finland legal aid lawyers aim to provide a holistic service linking suspects in with other professionals and providing them with counsellors on finances and debts.
Audiovisual recordings
This was Ireland’s best practice example as Garda interviews are routinely audiovisually recorded. We hope that this good practice will inspire other Member States to also adopt audiovisual recording.
However, the system in Ireland is not without its flaws. We identified issues such as the fact that exchanges before and after the tape is switched on aren’t captured by the video; camera perspective bias; and issues defence lawyers face when trying to access the tapes. In addition, persons not detained for questioning but who present voluntarily for interview don’t have a legal right to have their interview recorded.
Audiovisual recording alone is not sufficient to balance the inequality innate in Garda custody. Rather, it is just one of a suite of interdependent safeguards that must always be present. For example, the fact that an interview is being audiovisually recorded is never a replacement or substitute for having a solicitor present.
This project is co-funded by the European Union’s Justice Programme. ICCL worked with partners in Romania, Austria and Spain as well as Fair Trials International on this project.
