This week we learned about rights of an accused and trials in due course of law. One thing that really surprised me about this topic is that when the Consitution guarantees the right to the solicitor it is not an unqualified right. This means that it is actually a right of ‘reasonable access‘ to a solicitor.
Unlike in many jurisdictions, in Ireland the Gardaí can rightfully question a person in custody before they’ve had a chance to consult with their lawyer. The Garda in charge must ring a solicitor on your behalf but there is no rule that says that questioning cannot begin until after that solicitor has arrived.
There is undeniably solid reasoning behind this; in Ireland, the Gardaí only have a period of twelve hours in which they can detain and question a suspect. Although in some cases this period can be extended by judges, waiting for a solicitor to arrive (especially if he/she takes hours) significantly reduces the time the Gardaí have to get a confession.
Thus, it does make sense that the right is of reasonable access and not absolute.
That being said, think about the implications of not having immediate access to a lawyer for an accused. They have no idea what they should or should not say (unless they’re familiar with the process and that’s a different story). They have no idea exactly what will incriminate them.
So while it is reasonable that the Gardaí would want to begin their questioning as early as possible, I personally see a solution that would reconcile the two approaches:
An accused may not answer questions until his/her solicitor arrives but only provided that the solicitor arrives within a certain period of time.
That way, the accused has more protection and it avoids any deliberate time wasting on the part of the solicitor. It’s in his or her best interest to get to that station as quick as is possible.
What do you think? Do you think the Irish approach is fair or would you favour the approach in the US and other jurisdictions? Let me know!