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May 10, 2017

Advising clients in Garda custody – some practical issues.

For the Monaghan Bar Association

Even the most experienced criminal law practitioners find advising persons in custody to be daunting. With the additional responsibility of being present at the interview the stakes are now much higher and the task more challenging.

However in reality advising clients in custody is no different to representing them in court, and the same basic rules apply. The best results will always be obtained when you are properly prepared, have available to you the correct materials to consult, take comprehensive instructions from your client, seek proper disclosure from the police and participate meaningfully in the interview process.

Naturally each of these steps needs to be meticulously recorded in case it is necessary to refer to any event at a later stage either in the course of a criminal trial or elsewhere. While we have not had any cases yet arising from the solicitors duties to clients during interviews, given that we have only recently been permitted to attend them, there is no reason to think other than the English precedents will apply and solicitors have been found negligent for failing to properly protect their client's interests in the interview.

One of the leading cases on the subject is R –v- Anthony Paris and Others 1993 97 Criminal Appeal Review 99

There the Court of Appeal observed “although we did not hear what his instructions were, the solicitor who sat in on the interview, seems to have done that and little else …. It is of the first importance that a solicitor fulfilling the exacting duty of assisting a suspect during interviews should follow the guidelines and discharge his function responsibly and courageously. Otherwise his presence may actually render a disservice”

In a study on incompetent police station advice by Professor Ed Cape he cites two cases as indicators of bad practice.

In the case of the Hussein and Hussein the Judge was critical in particular for the solicitor failing to take any written record of instructions from the client or obtain disclosure from the police and for failing to spend adequate time with his client prior to police interviews, and he concluded that the advice and assistance was “wholly inadequate”.

In the case of Fisher and Lovell, the Judge criticised the defence solicitor for taking “inadequate steps to protect (the accused) interests” and specifically for not intervening on a number of occasions when in the Judge's view the interview should have been stopped.

I mention these cases not to create any sense of anxiety but rather to indicate that there are available to us useful resources in terms of decided cases which can be pointed out to the police in the event that they are trying to unreasonably hurry you along or conduct interviews in an oppressive fashion. It is perfectly legitimate to point out that you have a professional duty as elaborated on by the courts and that you intend to discharge that duty.

I think a useful way of addressing practical problems which arise is to walk through a typical detention under the new regime.

While it is not unknown for clients to be invited to attend a Garda station by appointment for the purpose of interview, it is more common in my experience that the arrests are either in or about the time of the commission of the offence, or planned to commence with an early-morning arrest when suspects are most likely to be at their home.

Where arrests are by appointment, or in those cases where it is open, in white-collar fraud investigations, for the detention period to be spread over three separate occasions, it may be possible to plan in advance. Otherwise it is necessary for you to re-arrange your schedule when the unexpected arrest occurs.

Typically you will receive a phone call from the Garda station and you will need to establish in that call:-

  1. The name and address of your client
  2. The time of arrest
  3. The police station.
  4. The type of detention, Section 4, Section 30, Section 2 or Section 50
  5. The name of the arresting Garda
  6. The name of the member in charge authorising the detention
  7. The offence for which he is arrested

 You should at that stage insist on speaking to your client on the telephone and giving preliminary advices. This is a useful opportunity to gauge the temperature of the investigation, and the vulnerability of your client.

You should give your client, and the member in charge a realistic indication of when you expect to arrive in the station, or details of any colleagues who will arrive in your stead. If there is any change in circumstances that will delay you should also notify both your client and the member in charge of this fact.

Once it has been established that a solicitor will arrive at the station within a reasonable period the Gardai are unlikely to commence an interview as they know that to do so would run the risk of the interview being excluded from evidence. If however you have not indicated that you will be coming within a reasonable time then that protection will be lost to the client.

A careful note of these preliminary matters should be taken and many practices have their own pro forma notes for this purpose. With the kind permission of our colleague Richard Atkinson, the Chair of the Law Society of England and Wales Criminal Law Committee I am attaching to this paper the layout of the questionnaire that his firm uses and which I am intending to adapt for use in our own office.

Every colleague should have a lever arch folder with the main pieces of criminal legislation touching upon detentions available to them in their car, at their home and in their office. It is a useful exercise to consult the relevant particulars before travelling to the station.

Upon arrival at the station you should seek to discuss the case with a member of the investigating team before you talk to your client. I expect that when the Code of Practice for Gardai is finalised and distributed there will be greater consistency across the country but for the time being we can expect different levels of cooperation from different investigating members. I think it is a good practice to indicate in your original call to the member in charge advising of when you are expecting to arrive that you request that a member of the interviewing team be available at that time. This will at least cause some blushes if as frequently occurs to me the member that I need to speak to is on his “lunch”.

I find it preferable to get as much information from the investigating member before talking to my client as possible. Naturally the investigating members are sometimes reluctant to give that information and generally the greater the reluctance the weaker the prosecution case. One finds that when they have a very strong case they are only too happy to tell you all about it!

You then meet with your client. If you have represented the person previously and have already developed a rapport well and good. If not you may need to take some time introducing yourself and explaining what your role will be and how you can assist the client.

As with every other type of legal business the manner in which you give your advice will vary according to the sophistication and experience of the client you're dealing with. This conversation is a good time to assess your client to see if they have any special vulnerabilities of the nature of intellectual disability or drug addiction etc. It may be that you will need to bring to the attention of the member in charge a concern that your client is not fit to be questioned.

In this discussion with your client you should remind them of the following particulars of a legal consultation.

  1. That it is private and while the police may be in the line of vision they cannot be within earshot of the discussion.
  2. That is confidential, namely that anything said by the client to you cannot be disclosed by you to any other party without the permission of the client.
  3. That the client cannot give one version of events to you now and intend at a later stage to give a different version in evidence at court. The better course is for them to hear a full outline of the State case before deciding on what instructions to give you.
  4. If the client wishes to give instructions naturally you need to take a very careful note of them. It is very much the case that when clients face lengthy sentences they choose to blame the advice they received in the Garda Station. For your own protection you need to have your note so that you can confirm what your instructions were in the event that any complaint of that kind is made.
  5. Again depending on the sophistication of the client will be the method in which you explain that the right to silence does not in fact apply any longer and that there are three principal reasons why a client may say something in interview.

    1. Because they have a credible defence and they do not wish to run the risk of it being undermined or weakened because it was not mentioned at the first opportunity (Section 19 A CJA)

    2. Where they wish to avoid adverse inferences being drawn from their failure to answer material questions or account for mark’s presence at a place etc (Section 2 Offences Against The State Act, Sections 18 and 19 Criminal Justice Act) or

    3. Where the State case is overwhelming and where a mandatory sentence would attach unless material assistance is provided, they may wish to provide material assistance (Section 15 A)

In many cases where the client elects to volunteer some information to his interrogators it is preferable to do so by way of a prepared statement rather than in a free flowing interview.

A prepared statement has been held in England and Wales as being sufficient to avoid adverse inferences being drawn. The authority is R –v- Ali 2001 EWCA Crim 863

There the Court of Appeal held “here, as acknowledged by the learned judge, the essential facts had been disclosed in the prepared statement. Accordingly in our view, in the case of Sarfraz there was no such failure and in his case it was not appropriate for the jury to be permitted to draw an adverse inference on the basis of any such failure”.

A prepared statement is particularly suitable where a suspect is vulnerable and would not do himself justice or stand up to questioning. It provides to the suspect the protection of only disclosing a certain amount of information to his questioners and not for instance providing them with information which assists their case but which they were not in possession of previously, or even amount to an admission of another offence not under investigation

However there are occasions when you simply would not be comfortable advising a client to make a prepared statement. This will include when:-

  • A. The prepared statement does not go anywhere near providing a defence and in fact only adds to the pool of prosecution knowledge
  • B.  The account is one that is frankly incredible and would not stand up to scrutiny.
  • C. Where you feel Gardai have not shown their whole hand and that a premature prepared statement might do more harm than good.

In such an eventuality it is always open to furnish the prepared statement post-release when as much information as can be known is known. This of course comes with the health warning that a court may take a view as to the time when the statement was supplied and the later it is provided the greater the possibility of concoction.

It is worth noting that while providing a prepared statement is not referred to in the Department Justice Draft Protocol it is likely to be acknowledged in the Garda Code of Practice.

The First Interview

Depending on the experience that your client has this may very well be a very daunting experience for him. It is important that you instil a sense of confidence in him in your preparedness and abilities.

You should sit beside your client at the interview table and the questioners will sit opposite you. The camera will remain on your client but there should also be a camera which captures all the occupants of the room.

You will be watching for the following psychological ploys routinely engaged in by interrogators

Attempting to influence your client's decision-making by seeking to

  • A. Undermine legal representation
  • B. Undermine or belittle the suspect
  • C. Give inappropriate reassurance to the suspect
  • D. Build rapport with the suspect in order to influence his decision making
  • E. Be overfamiliar
  • F. Persuading your no comment client to answer questions by asking about his antecedent history.

Tactics of harassment/oppression can be

  • A. A question not expressed with appropriate formality
  • B. Conduct which is oppressive threatening or insulting
  • C. Leaving long silences
  • D. Pressurising your client by talking and questioning in a burdensome manner
  • E. Using abusive behaviour
  • F. Seeking to intimidate, insult ,undermine or pressurise your client by interrupting / over talking
  • G. Failing to listen to your clients answers
  • H. Dismissing your clients answers
  • I.  Undermining of belittling the suspect
  • J.  Repetitive questioning
  • K. Questioning for too long
  • L. Changing topic

 

The following are indicators of trick questions

Questions which are

  • Unclear and/or ambiguous
  • Contain several questions rolled into one
  • Attribute to the suspect a statement he has not made
  • Are based on a false premise as to fact
  • Are based on false premises as to law
  • Are based on a false premise as to a previous answer
  • Your client does not understand
  • Uses technical language or concepts
  • Are leading when the suspect is disadvantaged by age or mental health issues.
  • Other forms of inappropriate questions can be :-
  • Questions which-
  • Assert knowledge or beliefs with no factual basis
  • Adduce or refer to evidence unknown or unexamined by you or your client
  • Refer to statements of a co-suspect
  • Overstate, understate disingenuously generalise and deceive
  • Misrepresent information
  • Are irrelevant to the immediate enquiry
  • Call for your client's opinion about what motivated another person
  • Are questions based on the proposition of “what if”

On the one hand we should not interrupt unnecessarily as this will run the risk of the interviewers notifying the Superintendent who may make a decision to exclude you from further interviews and have another lawyer take your place. Equally we cannot remain silent where any oppression of the client takes place.

This will be a learning curve for all concerned. My own first experience of having to object to a question was when a client was being detained in relation to an historic sex abuse case.

The questioning member said to my client “ You're a depraved man.”

I interrupted and objected on the basis that was not a question.

Without blinking an eye the questioner retorted “You are a depraved man, what have you to say about that?”

Where less than full disclosure has been made prior to the interview it is possible that new and significant information will be communicated during the interview. At that stage you may consider whether to seek the interview to be interrupted to give your client further advice or take further instructions or simply let the interview run its course,( particularly if your client is not answering questions) with a view to getting all available information from that interview and then consulting before a second interview. Much will turn on the length of detention time still remaining and the likely tactics of the police. This is something that will have to be assessed on a case-by-case basis.

When the interview has concluded both you and your client will be invited to sign the notes of interview. Most colleagues that I have spoken to are not going to sign as they do not see that as part of their functionI think that this is a sensible course to adopt particularly given that the handwritten note is rarely comprehensive.

 As an aside I can inform you that the Smyth Committee has already made a recommendation to the Minister for Justice that the practice of taking a contemporaneous note be discontinued. It is the view of the Committee that the note has been overtaken by technology and its lack of comprehensiveness in fact renders it unreliable. The matter is now between the Gardai and the DPP as to how the Gardai are to report to the DPP what the outcome of any given interview was. This has obvious resource implications for them that they are trying to resolve and when they are resolved the contemporaneous note would be discontinued. This should in due course have the effect of speeding up interviews considerably.

Following this first interview you should establish from the Gardai what their intentions are in relation to any further interviews. If your client has been questioned for four hours he will be entitled to a one-hour rest break. The time you spend talking to your client is not counted as part of that one hour.

Depending on the comparative location of your office and the Garda station it may or may not be practical for you to return to your office with a view to coming back when the next interview is to commence. If you choose to remain in the Garda station make sure that your presence is known to the member in charge so that you can get confirmation in due course for the purpose of submitting a claim for the time spent waiting for the second interview.

The second interview and inferences

The main inference provisions are Sections 18, 19 and 19 A of the Criminal Justice Act 1984.

There are also Sections 2 and 5 of the Offences Against the State Act, Section 72 A of The Criminal Justice Act 2006 and Section 19.1 of the Criminal Justice Theft and Fraud Offences Act.

For convenience I have set out the relevant Criminal Justice Act sections here.

 — (1) The Act of 1984 is amended by the substitution of the following section for section 18:

“18.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—

(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or

(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,

was requested by the member to account for any object, substance or mark, or any mark on any such object, that was—

(i) on his or her person,

(ii) in or on his or her clothing or footwear,

(iii) otherwise in his or her possession, or

(iv) in any place in which he or she was during any specified period,

and which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.

(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for a matter to which subsection (1) applies.

(3) Subsection (1) shall not have effect unless—

(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and

(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

(4) Nothing in this section shall, in any proceedings—

(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,

(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or

(c) be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear which could properly be drawn apart from this section.

(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of the matter concerned was first given by the accused.

(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.

(7) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.

(8) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.

(9) In this section ‘arrestable offence’ has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006 ) of the Criminal Law Act 1997 .”.

(2) This section shall not apply to a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear if the failure or refusal occurred before the commencement of this section.

(3) Subsection (1) shall not affect the application of section 18 of the Act of 1984 to a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear if the failure or refusal occurred before the commencement of this section, and that section shall apply to such a failure or refusal as if subsection (1) had not been enacted.

Inferences from failure or refusal to account for accused's presence at a particular place.

29.— (1) The Act of 1984 is amended by the substitution of the following section for section 19:

“19.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—

(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or

(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,

was requested by the member to account for his or her presence at a particular place at or about the time the offence is alleged to have been committed, and the member reasonably believes that the presence of the accused at that place and at that time may be attributable to his or her participation in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.

(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for his or her presence at a particular place under subsection (1).

(3) Subsection (1) shall not have effect unless—

(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for his or her presence at a particular place might be, and

(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

(4) Nothing in this section shall, in any proceedings—

(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,

(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or

(c) be taken to preclude the drawing of any inference from the failure or refusal of a person to account for his or her presence which could properly be drawn apart from this section.

(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of his or her presence at a particular place concerned was first given by the accused.

(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.

(7) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.

(8) In this section ‘arrestable offence’ has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006 ) of the Criminal Law Act 1997 .”.

(2) This section shall not apply to a failure or refusal of a person to account for his or her presence if the failure or refusal occurred before the commencement of this section.

(3) Subsection (1) shall not affect the application of section 19 of the Act of 1984 to a failure or refusal of a person to account for his or her presence if the failure or refusal occurred before the commencement of this section, and that section shall apply to such a failure or refusal as if subsection (1) had not been enacted.

Inferences from failure of accused to mention particular facts.

30.— The Act of 1984 is amended by the insertion of the following section after section 19:

“19A.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—

(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or

(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,

failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material.

(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure to mention a fact to which subsection (1) applies.

(3) Subsection (1) shall not have effect unless—

(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure to mention a fact to which that subsection applies might be, and

(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure occurred.

(4) Nothing in this section shall, in any proceedings—

(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section, or

(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section.

(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to when the fact concerned was first mentioned by the accused.

(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.

(7) Subject to section 7 of the Criminal Justice (Drug Trafficking) Act 1996 and section 5 of the Offences Against the State (Amendment) Act 1998 , this section shall not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this section.

(8) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.

(9) In this section ‘arrestable offence’ has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006 ) of the Criminal Law Act 1997 .”

Adverse inference provisions have been part of our law since 1984 but even many lawyers were unaware of them and continue to believe that there was a right to silence. In point of fact the 1984 provisions were badly worded and were difficult to invoke. However since 1998 and the Offences Against The State Amendment Act inference provisions have been used more widely.

The most up-to-date amendment of Sections 18, 19 and 19A were introduced in the Criminal Justice Act 2007. They have not been used as widely as was anticipated, largely due to the difficulty in providing the safeguards that the Sections required in terms of advising in plain language etc.

However new forms of caution have been proposed by the Smyth Committee and communicated to the Minister. That development together with the fact that detainees will have a solicitor present with them during questioning means, in my view, that these inference provisions will be utilised in every serious criminal investigation.

It is likely that the inference provisions will not be used in the first interview but will be held for an interview towards the end of detention. For the purpose of this exercise however we are going to work on the basis that the inference provisions are being invoked in the second interview.

Upon your return to the Garda station the interviewing members should indicate to you that they propose in the next interview to ask questions preceded by a special warning that inferences may be drawn. They must disclose to you at that time the facts that they are going to posit their questions on. This gives you an opportunity of advising your client about inferences in the specific context that will arise in the interview. You need to make a careful note of what is disclosed to you and when. It may be absolutely vital in a subsequent criminal trial to be in a position to demonstrate that the client would have had something to say had the full facts be made known to him but only partial disclosure was made.

Because of the importance of this topic the likelihood is that the Garda Code of Practice will recommend that the disclosure interview between investigator and solicitor will itself be audio visually recorded.

They certainly will be recommending that at the beginning of the inference interview that the investigators will recite on camera in the presence of the solicitor and the client the facts that they say exist and in respect of which they now proposed question with a view to inferences being drawn.

We will accordingly get plenty of opportunity to consider the information and advise our client appropriately. If new information, not disclosed is introduced during the interview the solicitor should indicate that that is the first that this matter has been mentioned and that a break is required in order to take his client's instructions. I think I would also at that stage say on camera that it would be helpful if any outstanding disclosure was made immediately so that further interruptions would not be required.

When you have consulted with your client in relation to the inference interview they should confirm to you their instructions in writing as to whether they propose to say anything or not. It is vitally important that at each step of the process we have our instructions confirmed so that at a later stage no criticism can be made that the client was not fully advised, or it that the client was wrongly advised. Many clients will know that there is nothing that they can say to advance their case and will choose to remain silent. Many of those same clients will at a later stage say that that was on legal advice even if it was not. It is important that you are going to be in a position to confirm that your client was advised of the possibility of inferences being drawn and notwithstanding that advice had indicated there was nothing that he wished to say

Extension Hearings

If the detention you are dealing with is either an Offences Against the State Act or a seven-day detention an issue may very well arise as to an extension hearing being held. It is going to be vitally important for you to have a full note of what took place during the interviews in order to challenge State evidence at the extension hearing if your objection to an extension is that there is no necessity for it.

At the conclusion of the detention period your client will either be released or charged. At that time the Gardai will ask both the client and the Solicitor to confirm that there are no complaints about their treatment in custody.

Where there is a complaint to make it should be made then and followed up by a letter from your office and a request that the letter and the custody record be attached together.

Where no complaint is to be made I gather that many colleagues will not so confirm as they are going to keep open the possibility that their client may have something to complain about that he didn't feel able to discuss in the Garda Station.

If your client is not charged, it is of course always possible that there may be a charge at a later stage or even a further arrest if new material comes to light. For that reason it is vitally important to maintain a current file in respect of arrests even if charges are not preferred.

I have not dealt today with issues such as the taking of forensic samples or the holding of identity parades but I am obviously happy to answer any questions on those topics.

Finally when you go back to your office and you should immediately prepare the claim in respect of the fees!

As I mentioned elsewhere in this paper is the intention that in 12 months time we will review with An Garda Siochana the experience on the ground so to speak. The intention would be that we would try and identify improvements to our mutual understanding of respective roles of solicitor and interviewer with a view to the Garda Code of Practice being updated and potentially in due course an agreed document being generated. It would be immensely helpful to the Law Society in that task if you would bring to the attention of its Criminal Law Committee any problems that you encounter yourself in practice. The relevant person is Emma Jane Williams e.williams@lawsociety.ie and if you send her a note of your concerns they will form part of our review at the end of the 12 month period.

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