Supreme Court rules on admissibility of evidence from suspect awaiting legal adviceThursday 06 March 2014 16.47
The Supreme Court has ruled that statements taken from suspects while in custody may no longer be used as evidence against them if legal advice has been requested and not yet obtained when the statements are made.
In a judgement this morning, the five-judge Supreme Court addressed questions referred by the Court of Criminal Appeal on the admissibility of evidence obtained while a suspect is waiting for legal advice.
The court ruled the right to fair process recognised by the Constitution includes a right to have legal advice before evidence is taken in custody by means of a statement.
However, the court ruled that this right does not extend to the taking of forensic swabs or samples.
The judgement held there was "no Constitutional entitlement to have legal advice in advance of the taking of objective forensic samples in a minimally obtrusive way".
Until now, while a Constitutional right to legal advice when in custody has been recognised, it had not been held that evidence gathering from a suspect must be suspended until legal advice becomes available.
The questions for the Supreme Court arose from two separate appeals to the Court of Criminal Appeal arising from convictions for attempted rape and for murder.
The Supreme Court allowed the appeal of a man convicted of attempted rape on the basis that he had been convicted substantially on the basis of admissions made during interrogation in custody after he had requested a solicitor but before one had arrived.
The court held that different considerations applied in the murder case where forensic samples were taken from the suspect after he had requested a solicitor.
The court said this did not amount to a breach of fair process because he was legally obliged to provide those samples and they were taken in an unobtrusive way.
The court said it was important to emphasise that issues of this type had been the subject of legal debate in many jurisdictions for some time and it was no surprise they had now come before the Supreme Court.
It was clear from the case law of the European Court of Human Rights and from other jurisdictions that questioning must not proceed where a request for legal advice had been made until that advice is available.
The judgement also points out the different parameters of the rights upheld will have to await further cases with different facts, in particular the actions that must be taken by a suspect to invoke the right to legal advice, how that right may be waived and the circumstances of detention while awaiting legal advice.
The ruling by the Supreme Court today has major implications for the way gardaí investigate crimes.
It also has implications for other convicted people, but only if they raised the issue at their original trial and if their appeal is still pending.