Hildegarde Naughton (Fine Gael) | Oireachtas source

I would like to inform the Seanad of a significant development in the criminal justice area that has received very little attention. Late last week the Department of Justice and Equality informed the Law Society of Ireland that the Director of Public Prosecutions had issued a direction to An Garda Síochána to the effect that a suspect in Garda custody who made a request for his or her solicitor to be present during Garda questioning should - for the first time - have such a request facilitated. This welcome development is long overdue. It will protect the integrity of the criminal justice system and should lead to a decrease in the number of challenges to statements of admission given by people while being questioned in Garda custody. It may lead to the complete eradication of such challenges. However, a number of issues arise in this context. It is to be presumed that the decision of the Director for Public Prosecutions is a natural follow-up to the decision of the Supreme Court in the case of DPP v. Gormley, as given earlier this year. The Supreme Court's decision provides that a person who requestes the presence of his or her solicitor must be able to receive that solicitor's advice before questioning commences. It should be noted in that regard that the provisions of the Criminal Justice Act 2011 which provide for the decision in the Gormley case have not been initiated. At least in that case the Oireachtas has debated the matter. This direction of the Director for Public Prosecutions obviously goes much further, which is logical in the light of the Supreme Court's comments in the Gormley case. The judgment in that case expressly did not enter into the issue of a solicitor being present during interviews as it did not arise from the facts of the case. The comments of Mr. Justice Clarke, in particular, on the Gormley case seem most relevant to the new DPP directive. There also appears to be an evident line from some recent cases in the European Court of Human Rights.

My concern is not that this has come to pass - I welcome it - but rather that the Oireachtas has been bypassed in what is a fundamental shift in the rights of persons in custody. This direction does not flow directly from a decision of the Supreme Court. It is a decision made at the discretion of the Director for Public Prosecutions. In that way it has no force in law and I can only guess indicates that the Director for Public Prosecutions will not accept prosecution files on those cases in which the direction was not followed. If that is the case, we are left with a punitive situation where the Garda affords people their current legal rights during questioning, possibly about very serious crimes, but the Director for Public Prosecutions might not prosecute as the Garda refused to move beyond what was legally required. I ask the Leader to arrange for the House to be informed of what exactly has happened and the views of the Minister for Justice and Equality on the matter. I find it unusual that such a far-reaching overhaul of the system of justice is arrived at by the Director for Public Prosecutions without either a decision of the Supreme Court or debate in the Oireachtas.