From Legal Advice To Legal Assistance: Recognising The Changing Role Of The Solicitor In The Garda Station

• Author: Vicky Conway - Yvonne Daly
• Position: Associate Professors, Dublin City University
• Pages: 103-123

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FROM LEGAL ADVICE TO LEGAL ASSISTANCE:

RECOGNISING THE CHANGING ROLE OF THE

SOLICITOR IN THE GARDA STATION

Abstract

The primary aim of this article is to encourage reflection by those working in the criminal justice sector on how

recent developments, in Europe and Ireland, have brought significant changes for the work and role of criminal

defence solicitors. These changes require specific skills and training and thus we provide an account of the

‘SUPRALAT’ training being rolled out in Ireland. But these changes also need to be accounted for in police,

prosecutorial and judicial decision-making and we hope this article contributes to a wider and much-needed

discourse on the role of the police interview in the criminal justice process.

Authors: Vicky Conway and Yvonne Daly, Associate Professors, Dublin City University.

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Introduction

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In May 2014, the Director of Public Prosecutions wrote a letter which heralded a shift in Irish

criminal process. In reaction to the case of DPP v Gormley and White,1 and cognisant of emerging

European Court of Human Rights (ECtHR) jurisprudence, Director Loftus instructed gardaí to

permit solicitors to attend suspect interviews in garda stations with immediate effect.2 For thirty

years this had been permitted in England, Wales and Northern Ireland,3 however until this point,

solicitors were only permitted to consult with clients in garda stations, not attend the interview.

Since May 2014 solicitors have been allowed to attend the interview, not as a legal right, but on

the basis of this letter.

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Permitting solicitors to enter what has always been a closed, police space creates the potential for

significant change in the criminal process. This, in fact, is part of a cumulative process, building

on other recent changes, such as An Garda Síochána adopting a new interviewing model,

changes in evidential rules, and developments in the jurisprudence of superior courts of Ireland

and Europe. The result is that the nature and status of the Garda station interview has altered

dramatically.

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The focus of this article is to consider what these changes in the police interview mean for the

role of the criminal defence solicitor. Practically speaking, solicitors must incorporate this time-

consuming, and often anti-social work, of attending police interviews, into existing practice. But

more than this, they must increasingly conceptualise their role differently, with both the ECtHR

and solicitors themselves recognising that attending interviews generates a multitude of

functions: building the defence, supporting clients in very stressful situations, in addition to

providing advice and ensuring that rights are protected whilst in custody. The lack of a clear legal

framework means that many solicitors have felt somewhat at sea in terms of knowing what they

can and cannot do, but they also increasingly appreciate that they need to enhance their skillset

to be effective in this new dimension of their work.

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1 [2014] 2 IR 591 (SC).

2 See Ruadhán Mac Cormaic, ‘Solicitors May Attend Garda Interviews’ The Irish Times (Dublin, 19 May 2014).

3 As will be seen later, this was an exceptional position: Scotland and continental Europe have only recently permitted this, while

Canada still does not, see Dimitros Giannoulopoulos, ‘Strasbourg jurisprudence, law reform and comparative law: A tale of the

right to custodial legal assistance in five countries’ (2016) 16(1) Human Rights Law Review 103.

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As part of an EU-funded project4 with colleagues across Europe, the authors developed

interdisciplinary, skills-based training, centred on a broad concept of the solicitor’s role, wherein

the lawyer is encouraged to be active and client-centred. In the last two years, over 85 Irish

criminal defence solicitors have undertaken this ‘SUPRALAT’ training.

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This article aims to broaden understanding of the changing role of the criminal defence solicitor,

and to highlight how the SUPRALAT training prepares practitioners for that expanded role. We

will commence with a review of changes in jurisprudence, policy and procedure which have been

occurring at the European and Irish levels. We will then provide an account of the range of

functions which now fall within the role of the lawyer when attending the police station. This

will be followed by an exploration of the SUPRALAT training. We will provide insights into how

that intensive, immersive training is delivered and indicate some concerns which are emerging

from interactions with solicitors.

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Other actors in the space – particularly legislators, prosecutors and judges – need to reflect on

the changes in the work of Gardaí and solicitors in the police station to consider what that

means for criminal prosecutions and evidence. We say this for three reasons. First, solicitors are

anxious that they may be criticised by the judiciary for their actions in the interview setting, and

thus, greater shared understanding of what solicitors aim to do in interviews may minimise those

concerns. Second, the decision of the Supreme Court in DPP v Doyle5 declined to recognise the

existence of a constitutional right to have the solicitor present in the interview: discussion of the

broader role of the solicitor may be important as jurisprudence develops. Third, we believe

strongly that legislation is required in this area and we seek to highlight certain issues that should

be borne in mind when drafting that legislation.6

European Developments

At a European level, changes regarding the right of access to a lawyer have come both from the

European Court of Human Rights and the European Union, indicating that this is an issue

bound up in fundamental concepts of human rights, but which also requires regulation to ensure

consistency. Article 6(3)(c) of the European Convention on Human Rights states that a person

charged with a criminal offence has the right ‘to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be

given it free when the interests of justice so require’.

The interpretation of this provision was revolutionised in Salduz v Turkey,7 where the Grand

Chamber pronounced what is known as ‘the Salduz principle’; there should be access to a lawyer

from the first interrogation unless there are compelling reasons not to. That case concerned a 17-

year-old who was interviewed by anti-terrorism police without a lawyer present, during which

time he admitted involvement in offences. The applicant argued that the absence of a lawyer was

in breach of Article 6. Previously, the Court assessed this question by considering the fairness of

the proceedings as a whole,8 however in Salduz the Court departed from this approach, basing its

decision on the belief that: ‘The rights of the defence will in principle be irretrievably prejudiced

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4 European Commission grant (JUST/2014/JTRA/AG/EJTR/6844; October 2015-September 2017).

5 [2017] IESC 1.

6 See Yvonne Daly and Vicky Conway, ‘Submission to the Law Reform Commission’ (Dublin City University 2018)

accessed 15 March 2019.

7 (2008) ECHR 1542.

8 Imbrioscia v Switzerland (1994) 17 EHRR 441; Murray v the United Kingdom (1996) ECHR 3; Averill v the United Kingdom (2000)

ECHR 212.