A Supreme Court justice has warned that early morning arrests and harsh detention conditions can undermine a suspect’s ability to obtain legal advice before questioning.
In a judgment delivered on 6 March 2014 in appeals involving Raymond Gormley and Craig White, Mr Justice Hardiman said he agreed with Mr Justice Clarke’s judgment and added observations of his own. The supplied excerpt does not include Justice Clarke’s full judgment or the Court’s formal orders, so it does not establish the precise outcome of either appeal.
Justice Hardiman described detention for questioning as involuntary custody of people presumed innocent and not yet accused. He said detainees were entitled to dignified treatment, including access to food, drink, medication, family and professional advisers, unless restrictions were strictly necessary.
He said Gormley had asserted a right to legal advice in custody before questioning, rather than a broader right to have a lawyer present during questioning. Hardiman considered that broader claim likely to arise in future. Referring to the UK Supreme Court’s decision in *Cadder v Her Majesty’s Advocates*, he said Ireland had the same need to organise its systems around detained people’s rights to access a lawyer before police questioning, absent compelling reasons to restrict that access.
The judge focused on the practical effects of early morning arrests. He said they could involve distress to family members, handcuffing and confinement in cells he described as sometimes unsanitary. If a detainee asked for legal advice, several hours might pass before a solicitor could arrive, potentially discouraging the request. Hardiman questioned whether early arrests without notice were necessary in every case and whether detainees should bear the cost through longer detention while waiting for a lawyer.
He also stressed that advice before questioning could require specialist experience, particularly because a detainee’s responses could lead to damaging inferences at trial. He said detainees might be tired, distressed, young or in need of medication, making complex legal advice harder to understand.
Hardiman distinguished detention for questioning from detention solely to obtain a compulsory scientific sample, saying Gardaí should explain the difference in ordinary language. He expressed the view that every formal stage of detention in a Garda station, especially explanations of the right to consult a solicitor, should be audio and video recorded. The excerpt ends as he says a failure to record requires explanation; it does not provide the remainder of that discussion.