On 23 May 2019, the European Court of Human Rights ruled, 6-1, in the case of Doyle v Ireland (App. no.: 51979/17), that the European Convention on Human Rights did not guarantee the right to have a lawyer physically present during police questioning. In doing so, the Court followed a new approach to Article 6 of the European Convention on Human Rights and refused to be influenced by American jurisprudence such as the famous case of Miranda v. Arizona, 384 U.S. 436 (1966).
The case of Doyle v Ireland (App. no.: 51979/17) concerned a murder suspect who was apprehended by the Irish Police and subjected to multiple rounds of questioning. Before the first questioning and in between the later rounds, he was allowed consultation with his solicitor. Further consultation with the solicitor was also allowed during an interview via telephone which caused the interview to be paused. However, the solicitor was not allowed to be physically present during questioning itself. During the trial for murder, the Applicant sought to exclude the confession made during questioning on the grounds that he was denied the right to legal assistance. A judge, without a jury, allowed the confession to be admitted in evidence and the Applicant was eventually convicted. On appeal, the Irish Supreme Court held that the Applicant’s argument for an absolute rule of presence of a lawyer rested almost entirely on the reasoning of the US Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966) and had no support in Irish jurisprudence.
The argument before the European Court of Human Rights was twofold. Firstly, the Applicant argued that the lack of access to a lawyer during questioning rendered the whole trial unfair within the meaning of Article 6(1) and, secondly, that it breached also his specific rights under Article 6(3) of the Convention. However, relying on the 2018 case of Beuze v Belgium (App. no.: 71409/10), the Court deemed it appropriate to consider the claim under one heading of the fairness of the trial:
“71. Compliance with the requirements of a fair trial must thus be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1.
“72. According to the Court, those minimum rights guaranteed by Article 6 § 3 are, nevertheless, not ends in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see Beuze, cited above, § 122, and Ibrahim and Others, cited above, §§ 251 and 262 with further references).”
Employing what it described as a ‘very strict scrutiny’, the European Court of Human Rights found (at paras -) that the overall fairness of the proceedings was maintained despite a limited access to legal assistance because:
- the Applicant, as an adult native English speaker, was not a vulnerable person;
- questioning rounds were not excessively long;
- extensive breaks were allowed during questioning;
- access to lawyer by phone or, at times, in person, was allowed on request;
- the Applicant was physically and mentally strong throughout questioning;
- there was no ill-treatment of the Applicant;
- the applicant was able to challenge the use of the statements made during his questioning before the trial court;
- the Applicant had the opportunity to re-argue the admissibility of the statements on appeal before the Court of Appeal and the Supreme Court;
- the Applicant’s conviction was not based solely on the statements made during questioning;
- the Applicant was convicted by a jury which had seen videos of his questioning;
- the Applicant was notified of his rights on arrest.
Consequently, the majority of the European Court of Human Rights held that there was no violation of Article 6 of the European Convention on Human Rights. However, Judge Yudkivska submitted a dissenting opinion, where she argued that Beuze v Belgium (App. no.: 71409/10) had been incorrectly decided and the Majority Opinion was building on its ‘unfortunate legacy’ (para [B]).
Judge Yudkivska further argued (at para [B]) that the Court should follow the 2008 case of Salduz v Turkey (App. no.: 36391/02) and its line of reasoning:
“Salduz thus seemingly advanced a test whereby if an applicant’s access to a lawyer has been restricted and there is an absence of compelling reasons to justify that restriction, the proceedings will be irreparably prejudiced and therefore there will be a finding of a violation of Article 6. Accordingly, in accordance with (what I consider to be the “correct” interpretation of) Salduz, the Court ought to have determined that, due to the absence of any compelling reasons to justify the applicant’s restricted access to a lawyer (paragraph 84), there has been a violation of Article 6 §§ 1 and 3 (c) in this case.”
Judge Yudkivska also pointed (at para [B]) to the relationship between the jurisprudence of the European Court of Human Rights and other Courts:
“…The Salduz jurisprudence on the right to have access to a lawyer (including to have a lawyer present during interrogations), with its clear prohibition of blanket restrictions, was followed in subsequent cases and is supported by a number of international instruments and case-law (see for example, CPT/Inf (92)3-part1; [CPT/Inf (2011) 28]; CPT/Inf(2011)28-part1; E/CN.4/1998/39/Add.4; and Miranda v Arizona, 384 US 436 (1966)).”
Finally, Judge Yudkivska concluded (at para [C1]) that “…the above interpretation of Salduz would result in a more fair and just conclusion in the present case – namely an automatic finding of a violation due to the absence of compelling reasons to justify the restrictions on the applicant’s right of access to a lawyer…“