Tag: Ireland

ECtHR Limits Right to Lawyer during Police Questioning

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 vArizona, 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 vArizona, 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 [79]-[99]) 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 applicants 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 applicants 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[6]; [CPT/Inf (2011) 28]CPT/Inf(2011)28-part1[7]; E/CN.4/1998/39/Add.4[8]; and Miranda v Arizona384 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 applicants right of access to a lawyer…

The End is Near for Strict Northern Irish Abortion Laws

Northern Ireland has one of the strictest abortion laws in Europe. It also differs from the rest of the United Kingdom where abortion is easily accessible under the Abortion Act 1967. But Northern Irish women can only access abortion where the mother’s life or health is in danger. This has recently been challenged by the Northern Ireland Human Rights Commission as incompatible with Article 8 and Article 3 of the European Convention on Human Rights. In 2015 the Commission won a surprising victory at the Northern Irish High Court ([2015] NIQB 96) where the Court held that Northern Irish law failed to strike a fair balance between the right of the mother to private life guaranteed by Article 8 of the Convention and the need to protect the life of the foetus, in cases of pregnancy resulting from sexual crimes (prior to the point of viability) and foetus deformity (throughout the pregnancy). But this ruling was subsequently overruled by the Northern Irish Court of Appeal ([2017] NICA 42). Finally, on 7 June 2018, In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland), the UK Supreme Court ruled 4-3 that the Commission had no legal standing to bring the case in the first place and therefore the original ruling was void. However, at the same time, and somewhat unusual, it was held that had there been jurisdiction, the Court would have found the current Northern Irish abortion law incompatible with Article 8 of the Convention in cases of rape and incest (4-3 vote) and fatal foetal abnormality (5-2 vote).

This line of cases dating back to 2015 is extraordinary for at least three reasons. Firstly, the European Court of Human Rights has never found that strict abortion laws comparable to Northern Irish statutes, as a matter of substance, violate any Article of the European Convention on Human Rights, even when it was expressly invited to do so in A, B, C v Ireland (2011). For a domestic Court to find a violation of any Convention right in this situation is to curtail a wide margin of appreciation given to states by the European Court of Human Rights in relation to abortion regulations, at the expense of the legislature. Secondly, Northern Irish society is known to be extremely prone to social unrest and given how controversial the abortion debate is, the Courts have shown real courage by stepping into this debate so decisively. Thirdly, even though the case was ultimately thrown out on procedural grounds, the UK Supreme Court has sent a clear message that the Northern Irish abortion law must be liberalised as it considered it incompatible with the Convention. It is inconceivable that this unequivocal message could be ignored and as such, it is now a matter of time before Northern Irish abortion laws undergo a deep reform.

Judgment In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland Abortion Case)

The Judgment of the UK Supreme Court In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) concerning the compatibility of the Northern Irish abortion law with the European Convention on Human Rights.