DPP v Gormley & DPP v White: Living Constitution guarantees protection of prevailing ideas of basic fairness

imagesIn these joined cases, the Court held that Article 38.1 of the Constitution’s guarantee to the right to trial “in due course of law” extends to a suspect in custody having a right to access to a lawyer prior to the commencement of interrogation but not prior to the taking of genetic samples through legal, minimally evasive procedures. This right results from the status of the Constitution as a living document which must be interpreted in accordance with prevailing norms.

Judgments

Clarke J (here), with whom the other four judges concurred, drew a distinction between the subjective nature of evidence which can be extracted through interrogation and the objective evidence which is extracted through genetic samples. The evidence extracted from interviews may be subjectively connected in content to whether or not the suspect has accessed legal advice. Whereas a genetic sample is objective and will yield the same facts regardless of whether or not the suspect has accessed a lawyer. Therefore, the guarantee to a trial in due course of law extends to protecting the former but not the latter.

This right arises from the Court’s long jurisprudence of interpreting the Constitution as a living document which must be interpreted “in the light of prevailing ideas and concepts” (Walsh J in McGee v Attorney General). Clarke looked to the jurisprudence in comparable jurisdictions (the UK, Canada, USA, Australia and New Zealand) and in the ECtHR. He found that there is “a clear international view” that investigating police should not begin interrogating a suspect until he has consulted a lawyer [7.11]. Given the broad acceptance of this right in comparable jurisdictions and the Court’s jurisprudence on interpreting the Constitution in light of prevailing ideas, Clarke held that access to a lawyer prior to the commencement of interrogation is a “fundamental requirement of basic fairness”, any breach of which can be contrary to the right to a trial in due course of
law [8.8].

Hardiman J, who agreed with the judgment of Clarke, wrote a second judgment outlining his additional concerns (here). Defence lawyers will read this carefully. In it, he criticises Garda practice of unnecessarily conducting dawn and weekend raids to arrest suspects. This inescapably leads to delays in suspects accessing lawyers, which in turn necessitates the detention of suspects–all presumptively innocent and most in fact innocent–in dark and unsanitary conditions. He points out that that may not affect a hardened criminal, but for an innocent suspect with no prior experience of the criminal justice system 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”.

Clarke pointed out that it could come as no surprise to anyone with an interest in the topic that the constitutionally guaranteed right to a trial in due course of law extends to having the right to access to a lawyer prior to interrogation. And given Hardiman’s criticisms of Garda practice during arrest and detention, it may not come as a surprise if, in future, a defendant challenges the constitutionality of the circumstances of his arrest and detention prior to interrogation in light of the prevailing ideas of basic fairness.

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1 Comment

  1. Does a detainee have the right to have a solicitor present during questioning, or is that a concession by the Garda Síochána? | scoirl

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