Policed The Beat: In Custody

[Music] Hi and welcome to this episode of Police to the Beach, a side companion series to Police to Ireland, where we look at news, events, research and activities related to policing. Today I am really delighted to be joined by my colleague, Professor of On Daily, who is Professor of Criminal Law and Evidence in DCU. Thank you for joining us so on. Nice to have you, Mr. Fuenzito, Czech Vicky. I'm good to know your promotions since the last time you were on. Thank you. So, we're going to talk today about a few different things that relate to the rights of detainees in a police station. And this is based on research that you and I have been doing, and that you have been doing with some European colleagues as well. So, just to start, like obviously, this is always that kind of wide-eyed awakening moment when you say to people that what happens in the movies in the TV, that when you're arrested you always get your lawyer. That's not actually how it happens at all. So, could you start by explaining to us what rights do we have to have a lawyer if we are detained? Yeah, absolutely. You're right about the movies in TV. I spent, you know, as a bit of a nerd in my teenage years, I spent a lot of time watching the bill, and I had presumed from the bill that when you're arrested, you know, a lawyer would be immediately provided to you and could sit with you throughout the interviews in the Guarantee Station. But that wasn't the case until very recently that you could have your lawyer present with you throughout the interviews, and the system is quite different in Ireland as it is in England and Wales. So, you are entitled to have access to a solicitor, you have a constitutional right of access to a solicitor during a period of pretrial detention, and traditionally I suppose from sort of the early 90s, when that right was first recognized onwards, that was recognized as a right of reasonable access to a solicitor, which didn't include having the solicitor with you during the interview. So, you could speak to your solicitor in advance, get their advice and so on, but you are on your own in the interview with the interviewing guide. And that changed, that practice changed back in 2014 on the back of the case called Gormley and White, which didn't specifically recognize the right of your solicitor present in the interview, that wasn't part of the fact of that specific case. But there was an inclination there, a suggestion that this is how things are going at a European level, European Court of Human Rights has always been very concerned about access to legal assistance as part of the right to a fair trial, particularly if there's going to be any interference with the right to silence, which we can talk about maybe a little later, but there was a feeling that this is where things are going in terms of the European Court of Human Rights, and also in terms of the European Union, which had issued a directive in relation to access to legal assistance. So in Ireland now, let's say if you're arrested, you can have reasonable access to a solicitor, and if you would like that solicitor to sit in the interview with you, that's allowed as well. So it hasn't actually been technically recognized as part of the constitutional right of access to legal assistance, and there's no statutory provision for it either. It's just being allowed to happen for the past five or six years. Yeah, because this is a pretty mad thing, that decision came out. And then like two weeks later, the DPP wrote everyone and said, "Let the solicitors in." And literally the next day's solicitors were starting to attend interviews, like it was a pretty crazy situation. Yeah, it happened really quickly, and it was something I think that people have been saying for a long time that this should be a part of the right. There had been a couple of cases, particularly a case involving a juvenile suspect, where they had tried to push the issue, I suppose, and the Supreme Court were not returning on it. And ultimately, this decision, as you say, came from the DPP's office, really. It's kind of not the recognition of a right, not even an entitlement, really, but just saying, "Well, let's let this happen now." And there had been a working group looking at how it could be resolved and so on. But yeah, the decision came in an unusual way. And was something, I suppose, that the solicitors suddenly then had to get ready for it. And, Garede, likewise, had to get used to the idea of having solicitors in the interview. And there were, I think, some sort of teething issues as to how it would all work. What was the exact role of the solicitor in the interview? How much could they interject? Could they object to questions? Were they just there only to advise their client, or could they have more engagement? And nobody, I think, initially was exactly clear what the rules of engagement were. And about a year or so later, the lawsuit came up with some guidance for solicitors and the Garede put together a code practice as well. And the two documents are similar to some extent, but different a couple of respects as well. But there was so many, at least, then, to say, look, these are the rules of engagement. This is what the solicitor can't do when they're present in the interview. And so I'm just going to say it again to be clear. So everyone has a constitutional right to talk to a lawyer, and that can be face to face in a Garede station, if you're detained. And the system now permits your lawyer into the interview, but it's not a constitutional right or there's no statutory basis for them, as you've said. But it's actually something that we've written about this. It's hugely important to have the lawyer in the room for all sorts of reasons. Like obviously to pick up an empty bad that might be going on or to explain to what the consequence of something might be, a question being asked. But also increasingly, we're looking at things like cautions or restorative justice mechanisms. And a lot of cases, just a lot less cases, they're going to trial. So what happens in the interview isn't being tested in front of a judge in the same way. And so having the lawyer there becomes all the more important to make sure that everything's being done right. Yeah, absolutely. That's absolutely right. Various research has been done and there's various publications out there that suggest and I agree with this, that the center of gravity of the criminal justice process has moved backwards from the public arena of the courts back into the private confines, really, of the Garede station. And what happens there is much more important now than it would have been in the past. And as well as what you said about restorative justice and so on, something like 92, 93% of people create guilty when they're prosecuted, when it gets further down the system. And so we don't get an opportunity to air it, I suppose, in public exactly what happened in the Garede station. What questions they were asked were the all appropriate questions, how they were treated and so on. So what happens in the station can now be very decisive as to what happens overall in the process. And as a lay person brought to the station, whether for the first time or whether you've been in there before or not, it's a difficult environment to be in. On the one hand, maybe a lot of information being given at you and it can be hard to, let's say you don't have this list or with you can be hard to recount and be clear on what's happened, what's gone on and what advice you should have for the next interview. And on the other hand, there can sometimes be very little information being given to you outside of the interview room in terms of disclosure that the Garede like to have a spontaneous reaction within an interview to information that they're putting to the suspect. And so if your solicitor isn't with you in that moment, you don't necessarily know what their advice would be. You could have had the interview or you could have had the consultation with them and advice as to what you should do in the interview, but as the interview goes off in a sort of unexpected direction and you don't have your solicitor with you. Again, very difficult to predict to consider what's the best option here. And as a person who hasn't been involved in any way, let's say in the criminal process before, it can be difficult to imagine ahead to if I want to raise, let's say, a particular defense in my trial later. Do I need to say that now or is it okay to remain silent? Let's say, and I'll answer these questions. Your house is all going to play out later, whereas the solicitors have that experience and can advise somebody and say, you know, let's do this now or this is my advice in this circumstance. I may have the objectivity because that's not forget. You've been arrested. You know, we are in this insanely stressful situation. Your head could be in all sorts of places. You might be really worried of the person that you're supposed to be caring for or worried about the fact that you haven't turned off at work and are you going to be fired and, you know, are you could have an addiction issue and you could be suffering withdrawal from that. And these are really, really important issues that, like, again, just that need for an objective person that's on your side to be there, aging you. Yeah, it's no longer a firearms issue as well, you know, because the, the guardian, particularly now very well trained guardian in terms of interviewing and so on, are there and they've the power of the state on their side and you as an individual person have been detained. Your liberty is curtailed and you're there and questions being put to you and so on. It's really important to have somebody who has the legal knowledge and advice, but it's also just to sort of almost like a support on your side of the table to some extent you're not totally alone. And we've heard a lot, I mean, I think people often have this image of somebody who's been arrested dozens of times and sure, sure, they know what it's all about and it's easy for them and that's Absolutely not the case, like all of our lawyers that we speak to would tell us that very clearly. And I want to move on to that because so we've done, you and I have done a lot of work in terms of training solicitors on attending guard station interviews and related to that, we did a research project where we went around the country and we interviewed 44 solicitors that mostly do criminal defense work. So solicitors that are regularly going into the stations who are on call weekends dealing with all of this. And there was so much that came out of those conversations, but one of the really interesting things that we focused on in an article that's coming out later this year in the Journal of Law and Society is how the lawyer gets chosen, which seems like such a tiny thing that you wouldn't even stop and think about it, but actually turned out to be a really big thing when we spoke to the solicitor, it wasn't it? Yeah, yeah. I mean, if you are arrested and you don't already have a solicitor, you don't know who to call. What actually happens? Like how does that process, how do you get a solicitor or such? Who selects the solicitor? And yeah, it was really interesting because this wasn't when we set out to do the research, you will remember, this wasn't necessarily an issue that we were trying to get information on, but it came up in almost all of the interviews that we had with the solicitors as being an area lacking in organization, shall we say? Just say the least. Yeah, so we're going to chat through some of the issues around that. So the way it is supposed to work and again, remembering, none of this is properly regulated, like the regulations talk about you, writer, lawyer, whatever, but what's kind of been agreed pretty much between the law society and the guards is that the law society maintained this list. So any solicitor who's willing to attend guard stations or respond to those calls puts the name in the list says where they're willing to go, all of that kind of thing. And so the law society maintained this list and the idea is that when you're arrested, you say I want to solicitor, the guards will give you the list for the relevant area and you pick this list or off the list and they phone them, right? Yeah, well, it's an online list and it's even sort of fancier than that in that if you're supposed to be able to click on it and each time you click on the page, a different solicitor should randomly come to the top of the list. So there's, you know, it has a sort of an inbuilt system to ensure that the different solicitor is possibly selected each time. So it's trying to avoid any sort of bias in the process by operating in that way. Okay, and one of the first things we found was the largest solicitor say that list isn't in place. Not in use. Not in use. Yeah, it's not in use consistently. I mean, some variants maybe across different stations and so on. But yeah, the general feeling that that list is not being used, that system is not being used. We even spoke to some solicitors that didn't even know the list existed. Further worrying. Yeah, yeah. Okay, so what, where are the list isn't being used? Can you tell us a bit about how solicitors are being picked? Or what solicitors say is happening? Exactly. So the solicitors we were speaking to, so this they're a perspective on it, I suppose. But as you say, it's sort of some of them didn't even know that the list existed. In certain stations, in what particular area of the country, they seem to have gotten together and created the local law association has created a list, which they've made available to the local stations. And like that, that list is maybe given to a suspect and they're told to pick a name off of the list. In other stations, there's a kind of a approach where you could just leave your business card and they sort of put it up on the wall. And then it was, you know, some suggests that maybe then a suspect was sort of given two or three cards and said, you know, pick up a one of those, but they weren't shown all of the cards that were possibly available. So quite half hazard across the country. And, you know, the further suggestion as well in talking to the solicitors where even longstanding clients, they'd hear from them afterwards that they'd been in the station. And the solicitors say, well, you know, quite didn't you call me. And, you know, some questions being raised that this person says, well, I said to the cards that I'd like you, and that somebody else was suggested instead. And that the different solicitor attended. So there does seem to be a difficulty there. Like, who is making the decision then? If you can't name a solicitor, even if you maybe if you have named one, that an alternative suggestion is sometimes being made, or why don't you get this person or give this person a call for you? Yeah, like there's one quote on that from the work we've had situations where longstanding clients of ours have been provided a different solicitor. And we've had cases where they've actually asked for our office, have been given whoever. And we don't think any attempt was made to contact our office. Which would be really worrying because, you know, you aren't talking to your choice of solicitor. And if the guards are overriding that in some way, which is the concern that some solicitors were expressing, then that's really problematic. Yeah, because this is a it's an important relationship, I think, between a suspect and their solicitor, you know, we're talking about how difficult it is to be someone who's under arrest in the station. And if you have a relationship existing already with a solicitor who you trust, you're going to listen to their advice, you're going to take their advice on board. You know, when a solicitor's a call kind of out of the blue to somebody they don't already know, they really put a lot of effort into trying to build a level of trust with that person. And it's so that the person will listen to them and take their advice and start to come, the person in the circumstance that they're in. So it's an important relationship, I think. So if you were asking to see your particular solicitor who you've, you know, maybe met before and you've already got a relationship of trust, it's important that that would that request would be fulfilled. And there is just to go back to your concourse, you and rights, they also say there's a right to solicitor of your choice. And yeah, and like some solicitor talked about a concern that if the guard is effectively choosing the solicitor, can you have that trust? Because is the person seen as being fully independent from the guards? And you know, and solicitor is having to explain, you know, even though the guards may have called me, I'm not a guard as solicitor and needing to explain that. Yeah, and just to compare with other jurisdictions, there's a level of remove in operation in other jurisdictions where if you can't name your lawyer, the less end Scotland, for example, the police have to ring a hotline as such and the hotline then selects the lawyer who's going to attend. So it's the level of distance between the police and the decision as to which lawyer will attend. I think that that's a useful protection for everybody. So there can be no question about the propriety of the decision and the suggestion that's strictly with attend. Because there are big questions about the propriety. So in those instances where they're either, you know, only giving them two or three of the business cards are not using the list, are overriding a choice. The concern that solicitor is expressed to us, and this is their view, you know, and we didn't speak to guards as part of this project. That wasn't what the project was about, but they are concerned that the guards have favorite solicitors that they're using and that they're tending to call. Yeah, I mean, some of the solicitors we spoke to said that their firms never or hardly ever get a call out of the blue. It's all existing clients who come back to them. Whereas you would expect if this is being done in a fairly sort of random, this is an expression on the list kind of manner. It should be relatively spread around as to who would get the calls out of the blue. So yeah, we tried to get a sense when we were talking to the solicitors as to why they taught they weren't getting calls or what was the impression they were getting. And some of that was based on things that their clients had said to them, you know, that I did ask for you, but somebody else was contacted instead. And there was a feeling amongst the solicitors that maybe if they were the type of solicitor who would really stand up for their clients' rights and custody who would object to inappropriate questions being put to their client and so on, that they might not get a call. So I'll give you one quote there. Some stations prefer some solicitors over others. They might have a perception of how that solicitor might approach the case. They might look at me and look at my client and say, we know no comment will be the result of this. Therefore, we're not going to call him. I have been told by a guard, we might call this solicitor because we know he might be more inclined to go guilty with his client. I mean, that's pretty worrying if that's what's going on. And so that's talking about how the solicitor is going to behave in the interview and whether they're going to maybe from the guard perspective and feed the flow of it, but others took it even more basically. So one solicitor said to us, perhaps certain lawyers wouldn't be contacted because a) they might intend to guard the station or b) if they do attend, they may not be in a position to provide attendance on a detention all the way through. So others believe it's because there's someone who just, you know, take a phone call and have their bitch, but not actually show up at the station. So there's different reasons, isn't there why people think the guards have their favourites as that were? Yeah, and obviously those are not reasons that should be taken into account when a solicitor is being contacted on behalf of somebody, you know, the question is to whether is this the type of solicitor who's likely could calm and sit in the interview or not, that shouldn't be a part of the decision making, you know, unless it's that you really want to ensure that somebody will sit in on the interview. It's nobody should be selected on the basis that they probably won't. I've one other post I might just share. Yeah, just like there is a point in that because what they did find was that certain really specialized, what we found was that certain really specialized units, like there was evidence of solicitors saying, you know, in particular cases, they seem to know that they'll be better off if there's this list and they will caught one. So for units are dealing with children. So, you know, some guardian actually fully realized and appreciated the need for a guard in the interview and sought a kind of solicitor that would do that. Yeah, that's true. And as you say, it's more specialized units and the guardian you were trained to the higher level of the gargitman interview model and so on. And they also recognize the sort of the general point that having the solicitor in the room is not just a protection of the suspect of the suspect's rights. To some extent, it's a protection of the whole process in that the solicitor's there and kind of object to things which are maybe happening and have an opportunity for things to be done in a better way than they might otherwise be done. So it's really to the benefit of the whole process to have the solicitor present in the room really. You know, it's harder to raise objections to things that happened at interview afterwards if the solicitor was there. But it really was quite striking how many said, "I don't get called that often because I take that robust approach." Yeah, yeah. I mean, some of them were sort of almost proud of the fact. I mean, it was almost proof to them that they do advocate very well for their clients, the idea that they wouldn't get called. I'll give you that quote that I was going to give you there. So once the solicitor said, "I think there are solicitors who will say "mass for the guards" and they'll be phoned by the guards so they won't kick up a fuss in the guard station. I wouldn't kick up a fuss in the guard station, but I will object to unreasonable questions. I will protect my client's interests. I will ensure my client makes an informed choice and knows his or her options. And if I have to, unfortunately, have a difficult discussion with the guard or remember in charge, I'll have it. So I won't be phoned by the guards because that's the type of work that I do. There are certain solicitors who will be phoned because they won't do that and they're known for saying "mass for the guards." I enjoy the imagery of saying "mass for the guards." But the points made there are really, really important. And what goes to what the role of the solicitor is in the context of guard detention. And also, I mean, there is reference there as well to solicitors who are not doing that. That's the other point I suppose is that not every solicitor is actively engaging in the process and protect their client's rights to the interdegree. I mean, there were some suggestions and there are suggestions in the research that on occasion there may be like some solicitors express the belief that maybe other solicitors were given the guard's gifts to make sure that they got the phone calls or that there were kind of mutually beneficial arrangements in terms of ensuring that they got certain legal aid payments or this kind of thing. I mean, there were allegations that border-on-corruption, but we can't prove or establish that. And even without that, this level of interference with what should be the client's choice by the guards because it might, in their views, make their job a bit easier, would be really, really worrying and problematic. Yeah, yeah. And there was also this just, you know, maybe it's kind of people who played football together at the weekend who just happened to know each other. That's sort of the thing. But again, that shouldn't be any part of this process. You know, the process of selecting a solicitor to attend the guard station should be above reproach, I think, because again, just to go back to how important right it is and how important this moment in the criminal justice system is for the whole legitimacy of the system and for the whole progress of a particular case. And so, you know, whatever the reasons are, like if a list system was being used in a random selection manner as the law's side system is supposed to be used, these questions couldn't really be asked as such. Yeah, and this is, you know, not purely to criticize the guards at all because this is the system they find themselves in and it's not regulated. But it's also a comment on other solicitors who, you know, maybe aren't taking the role as seriously or who aren't, you know, attending. And we had, we had one solicitor comment, you know, everyone's a winner here, other than the client. And that's important to bear in mind in this, I think. Yeah, the client is the one in the vulnerable position, the client is the person under arrest with charges, and you possibly facing charges with maybe evidence being put to them and they don't know how to react to that. And so it's essential. We're talking about the procedural rights of the suspect in the process. And so, yeah, it's really important that this would all start on the right pushing. And just to say as well that, you know, solicitors told us that they were able to see in court, let's say, you know, the following week when, when people would be brought to the court, they could see which solicitors were representing the court that corresponds to a particular guard station. So it was possible for them also to sort of, this was a level of proof, I suppose, to some extent that they're feeling that they weren't getting calls from a particular station and that somebody else was getting most of those calls or getting a lot of calls back station. Their feeling was born out in seeing that in this particular court, where the cases of that particular station come through, yes, it is often the same solicitors again and again. And another solicitor was able to point to the fact that they were on a similar kind of randomized list that operates for immigration detention. And they regularly and random legal calls from that, but very, very rarely got calls from the guard station list. So they felt these lists weren't equivalent. There was something very different happening in the guard station space. Yeah, I think it was, it was, you know, really good to, I mean, in terms of verifying what the solicitors were saying, it was good to get that information and to get the information about the courtrooms correspond with the stations because this isn't just a feeling that the solicitors have, you know, they are able to verify it through looking in comparisons like that. And so it is, it's a difficulty in the system. And as I say, you know, as we were saying at the start, this all sort of happened overnight the fact of being in the interview, but since the mid 80s, solicitors have actually been attending at the station. And so this, this issue of how you select a solicitor is much longer established issue. It's not just about this list or attending in the interview, which is more recent occurred. Unlike contextually again, this can really play on, you know, the vulnerability that anyone who is detained is experiencing in that moment because, you know, what we know, and this is proven in research overseas, but also what everyone says in the Irish context when people are detained, what they want most of all is to get out of there. They want to get the hell out of the garden station and they want to get home. They don't want to be there. And they will often make short term decisions. So they're not thinking about the longer term. They're not thinking when this gets to court, I'd be better off if I've had the lawyer in the interview with me, they are just thinking what's going to be quickest. And so if the guards are saying, oh, well, like concolla, if that's a solicitor, and I would heel take an hour or two to get here, you know, that can really influence the decision that the detainee makes. Yeah, absolutely. And awful lot of people who are in detention, they just want to get out for a variety of reasons, whether it's because of some sort of addiction reason, or because it just feels so uncomfortable in the position that they're in, or they have other responsibilities and so on like that. They just want to get out and it can be very difficult to solicitor to follow this difficult to help that person to focus on the fact that, you know, what happens here in the station over the next couple of hours is one thing, but it could have serious long term consequences later on. So, you know, you need to focus on the now, not on just getting out. So if there's ever kind of a suggestion that, you know, there'll be a delay in getting the solicitor, or, you know, maybe you don't need to solicitor at all, we can deal with this quite quickly and release you that that that does play on the mind of the people who are in the difficult position of being detained. And and it is difficult again, particularly in relation to attending the interviews, difficult for this list is actually to arrange their time. If they're, you know, let's say they're in court at halftown in the morning and they get a phone call from the station saying there's somebody here under arrest. Obviously, the detention clock is ticking from the guard of perspective. They can't hold the person forever. So they do need this list to come within a reasonable period of time, but this list wasn't expecting this arrest to happen. So it can be difficult. But, you know, the solicitor is the one who if it's one of their clients that they are, if they're going to call it to the blue, they need to arrange their time appropriately. Then it's not for the guard to prejudge that and say, if we ring that person, they're probably in court or, you know, they probably won't be able to come or to Saturday morning. They might be out with their kids or whatever, you know, the decision needs to be made. on objective basis, on a random basis, really, if the person can't name a solicitor or else the client's suspects in the station need to somehow be given a greater level of information about the solicitors they're being asked to choose from. So to say, well, look, here's the list. And we can give you some piece of information instead of just names or, you know, I have heard in the past swell about people who sort of handed the phone book and say, pick a solicitor out of that, you know, it's not really fair to a suspect to expect them to know themselves either on my basis to pick someone for the having to make this thing relationship. And some solicitors had like the view that this should be evidence that the detainee is making that. So thinking about reforms and how could do better. And some were really keen on this, that this be, you know, that the detainee has like had that choice that that should be reflected in some way. So one of the suggestions we made kind of trying to tie all of this together is that you could, I think quite easily, you could have a system operating in a guard a station where in one corner there is, you know, an iPad or a computer, which has this list. And that, you know, under CCTV, the detainee gets to make that selection. I mean, you could go super fancy and even say, let's have the solicitors upload like one minute videos where the person kind of gets a sense of like, because at the moment, they're just picking a name and they know very little about this person. And it's, you know, it's picking between job logs, job logs and Joanna blogs, you know, whereas if you can maybe hear the sound of the voice or just hear what they have to say for themselves, that might age with the decision. But I suppose the really important point is about choice and having that recorded or documented in some way. Yeah, and enabling the suspect to be the one really making the choice, because you can imagine just, you know, the sort of reality of it all, you can imagine a suspect who doesn't know what solicitor to call. And the guard is there showing them the list that say, and the guy in solicitor's suspect is saying, I don't know who to call, who do you think I should call. So, I mean, that does put the guard in a difficult position. The guard is being asked for who should call, but we need to sort of regularize the system so that the guard can say, it's not appropriate for me to advise you who to call. Here's the list or, you know, here's the iPad or whatever it is. That's all I can do for you. All these people are practicing solicitors. They practice the area of criminal law. You know, you're going to have to pick one of those on your own. So enable the suspect to do it. And I think in Belgium, they have a system not quite as snazzy as the iPad plan that we were thinking about. But they do have a system where the solicitor who's on their end can update their availability. They do are three days in advance. They can say, you know, let's say I've got a big trial coming on. I'm not available for the next four or five days. They can set that. And you could link that up to the system as well so that people can block out their time. You know, if that's something that they want to do on their side. So it's certainly better ways to doing this. And then that is important that solicitors are reasonable in terms of this because the guards are operating under a time pressure and detainees do want to get home. So, you know, if it is going to take them a few hours to get there, then, you know, they should be passing it over arguably. Now, there are times when a solicitor has an expertise that's really, really needed. And maybe you do want to wait for that expertise. But it's about reasonableness on all parts. And really just promoting the detainees rights. Yeah. And also to say that where it's possible to schedule an arrest and interview, I think there should be maybe more of that happening. So that again, everyone can plan for it. The suspect, the guard and the and the solicitor. Obviously on occasion, there will have to be an immediate arrest. Something is happening. Someone is found at the scene and the arrest happens immediately or there's, you know, concern around, you know, flight risk or something like that. But actually, a lot of occasions, arrests can be arranged. And that allows everyone to organize their time. And maybe if the suspect doesn't have a solicitor for them to do a little bit of research themselves to see who they might select and so on. So there are, again, it's these little things that they seem like little things but in the process. But actually, they could make the whole system work better for everyone. And again, you know, with the guards where I see that they could be put in that position where they're asked for their advice, we need to make the system work so that they can say, no, it's not a program for me to give that advice. There's a system. But this is the system. Let's use the system. Yeah. Yeah. And we're going to move on and talk about another bit of work you've been involved in, which is called the wonderfully titled M-Prize Project. Which is about the right to silence when you're in an interview. Tell us a bit about the project and what that righteous about. I will. Yeah, this is a EU funded project I'm working on at the moment. DCU are the Irish partners in this project, along with the University of Mastery, at University of Antwerp and KU-11. And we're looking at the right to remain silent in police interrogations, in Ireland, the Netherlands, Belgium and in Italy. And also looking at, I suppose, how that plays out later in the system, either where you've answered questions or where you haven't answered questions. And it's, yes, it's called M-Prize. The M-Prize part of that is to do with empirical evidence, which empirical research, which we've been doing on this. So we started off by doing a legal study of each of the doorstictions. First of all, see what is the law in relation to the right silence. And then we've been doing empirical research. So in Ireland, we've spoken to a total of 50 people working in the criminal justice system across the project. So before everything got shut down in Ireland in early March 2020, we had two focus groups with criminal defense solicitors. We had 19 solicitors in total in that. And since then, we had to move everything to individual online interviews or some interviews on the phone as well. So we've spoken to 10 firesters in criminal practice, a mixture of defense and prosecution experience there. 11 staff from the DPP's office, four judges, two from the Circuit Criminal Court, and two from the Central Criminal Court, two odds of experiencing the special criminal court. And we've spoken to six retired Guaradi who retired in the last four or five years. So we've tried to sort of look at all of the issues. We weren't able to speak to former suspects, which was something we had hoped to do as well. And the other issue, which really needs research on this at some other point, is jury research, which would be great. Obviously, we're constrained in what you can do in terms of that. But in particular, in relation to try to figure out what juries think if there is a piece of evidence on the prosecution side and no response to that, that say on the defense side or in inferences being drawn. So yeah, that was some of the issues we're looking at. So you do have a right to remain silent under questioning in the Guaradi Station, a constitutional right to remain silent. But it's not an absolute right that you can be interfered with. And in Ireland at one point, we brought in offenses specifically based on silence. So your failure to answer particular question was an offense in and of itself chargeable, even if you weren't charged with the offense for which you were originally arrested. With the European Court of Human Rights, it wasn't impressed by that and thought that that was too much of an interference with the privilege against self-incrimination. So although some of those offenses still exist, and I think there's a few of those actually included in the COVID regulations as well, a failure to account for where you're going. But generally, we've moved away from those and we've moved to use more so these inference drawing provisions where if a particular question is put to under a particular piece of legislation in Guaradi interview and you fail to answer that question, the jury, a trial can be invited to draw an inference from that failure to answer the question. And we don't clarify to juries exactly what we mean, but what inference are they to draw? So there's a number of different ones, but ultimately, I mean the inference is that you don't have an innocent explanation and that you're there for guilty. We've been looking at all of that, yeah. Can you talk about the findings of yes or? Yeah, we're still we're coming towards the end of the project, so we're putting all the findings and recommendations and so on together. But it's been a really interesting project I have to say and it touches on all the issues, some of what we've been talking about there. It's really linked to the right to legal assistance as well. And one interesting thing has been the discussion with the solicitors around how they come to their advice. In particular case, when discussing it with with the detained client, let's say in the interview and a couple of interesting things coming out of that. One is there's different categories of cases, different ways in which things play out. And you've kind of a feeling, I think there's a feeling out there, maybe again, it's just watching too much of the bill, but I think there's a feeling out there that the solicitors are always likely to advise their client to remain silent, no matter what. And that's not actually the case. I mean, it's much more nuanced than that. So, the solicitors are involved in taking so many different factors into account in the advice that they give to their client. In certain types of cases, it silence is almost never advised. So, for example, in sex offense cases, particularly where there's an issue around consent. The suspect is usually better advised to put their account on record at an early point. In other types of cases, it's very unlikely that the accused person themselves is going to want to answer any questions, including in like organized crime cases and cases involving subversive crime. Now just to touch on that issue for a minute, it's really interesting. The discussion I had with one of the retired Garedee lately in relation to this is there is an understanding as well. Sometimes the reason that someone is not answering questions is nothing to what's going on in the station, but everything to do with what's outside the station. And if you are even let's say on the periphery of sort of organized criminality or on the periphery of on law floor organization, that's sort of thing and you're brought into the station. You know, you'll be interviewed in the station, which will be interviewed again outside the station afterwards by the crime boss, let's say, to get to the bottom of what you said and what you didn't say in the station. So oftentimes the reason that someone is not answering the questions is because if it's found out that they answered any questions or engage with the guards at all, their life will be in danger, such in the lives of their family will be in danger. And so what I worry about in that context is attaching some evidential weight to that silence then. And saying to the jury or to the special criminal court, you know, this person didn't answer this particular question and allowing that silence to be part of the reason that they're convicted where that silence is not necessarily based on guilt is maybe based on fear. Because the last thing they're going to do is mention, no, I'm being intimidated and I'm not going to answer that. This is it and how can they like they they obviously can't say that either. It's not safe. And we don't either want people to be having off the ref our conversations with with garad, you know, that's not appropriate from another perspective. So, you know, it's really difficult to navigate that particular issue and it seems to be a kind of an issue that you know, it's understood that that could be an issue, but how do we actually how do we actually deal with it. And I was looking at the special criminal court in particular recently in relation to this and the inferences that can be drawn there on on an offensive membership. And just to I mean not to get too technical about the whole thing, but the actual legislation on that is quite different to the legislation. The inference drawing legislation on other things where it seems that you know, it's in the ordinary one of things, you know, you have to maybe you'll have to account for substance on your person like a piece of evidence will be put to you and you will be asked for your response to it. Whereas the inference provisions which can be used on the charge of membership, at least in their legislative form are looser than that. Like you can be asked to account, give a full account of your movements and actions during a particular period of time, but you know, it's not necessarily at least in the legislation like it may be operating differently and talking to the judges in the special they do seem to operate it a little more closely than this, but in the legislation at least it's not saying, you know, we have CCTV evidence of you in a particular place explain why you were there. It's rather give us an account of your movements, whereas just to you know to put it in the broader context the whole reason that we have protection for the right to remain silent is because it's an element of the presumption of innocence and that everyone is presumed innocent until the prosecution proved that they are guilty and it's not up to you to prove your innocence. So it's a really interesting topic, but it's deeper. There are more aspects to it, even then I realized when embarking on the research project as part of it. And it is, I mean, there's a lot of psychology and everything in there and it is an interdisciplinary team that's looking at it. But that, yeah, there's huge human psychology and you're playing with that. And you have some, I know you're doing training with solicitors next month, but you also have some webinars coming up. Don't you that? We do their webinars at the end of June, if anyone is interested, they're more than happy to get in touch with me and I'll send them the links. There are webinars which will bring together the research across the different jurisdictions, which would be really interesting as well. We've already written one article on the law across the different jurisdictions, which in human rights law review. And it's interesting that in let's say in the Netherlands, if there's no legislative provision for inferences to be drawn from silence, but it seems to be happening in the case law anyway. And these are our non-jury cases, which is the norm really in the Dutch system, but the inferences are being drawn from silence without the legislative protections. So to some extent, you know, it seems to me, a pity that we have these legislative inferences, inference provisions, but they also include a lot of safeguards in that the person must have it explained to them in order language, the possible consequences if they don't answer a question in the garden interview. It has to have been video recorded. They must have had an opportunity to speak to their legal advisor about the inferences and so on. So at least we have those protections. Like if the double edged sword, because by enhancing those protections as the ledge that you did in 2007, it actually breathed some life into the inference provisions. They hadn't been used all that often before. We gave them safeguards and now they're used somewhat more often. They're still not maybe as often as you might think. And on the other hand, then in the Dutch system, the inferences are still being drawn, but there's no requirement, for example, to tell the accused in the station that, you know, something you fail to mention now that could result in adverse consequences for you later. So maybe to some extent by having it in our legislation, there's actually a benefit to that in terms of the protection of something, right? And I do know, like, from our conversations with solicitors, it's all one thing to be attending the interview. But the second is an inference involved. It's a whole other ball game and they take that incredibly seriously. And it's, yeah, it's, and it goes back to the earlier point about the need for good trained solicitors to be advising and attending these interviews. It really is so important. Absolutely. And there's a recognition, I think the important the inference interviews are as well, because the practice has developed that when a person is first arrested. And this is partly because we haven't updated the caution, the traditional caution as well. When a person's first arrested, there may be two or three or four even interviews or ordinary interviews held. And if the person is not answering questions in those, then a whole separate inference interview is held at the end of the process. So there was more likely to be held in serious offenses or indeed, nor is crime offensive because there's a longer detention period. So there's more time in which to administer them. So take a bit of time to administer and explain and so on as well. And it's within the the guardical practice that I mentioned earlier, it makes specific provision for disclosure prior to the inference interviews where a lot more information needs to be given to the solicitor and to the suspect in advance to say, these are the items of evidence we will be pushing to them. In fact, sometimes they tell the solicitors in advance, these are the questions that are going to be pushed in the inference interview. There's one issue, which is of interest, actually, which has come up in our in our research is how the inference provisions are explained to accused and detained people. And I think the guards have gone to a lot of trouble to develop sort of ordinary language explanations, but there's a concern that they're not actually explaining is quite accurately. So just give you one example, one example, which is given to the accused is to explain what is an inference. And in this context, an inference from silence, the example is given that if you come into a room where there's a chocolate cake on the table and a slice of chocolate cake is missing. And if you have a child standing beside the table with chocolate all around their mouth, you can infer that the child is eaten the slice of cake. But some of the solicitors that we spoke to for this right silence research said that that's not what's going on with an inference from silence though, you know, that's a factual inference there. You can see the chocolate on the child's face. But the legal inference from silence is if you then asked the child, you know, can you account for the chocolate around your mouth and they said, you know, no comment really didn't answer the question. That's where the inference is being drawn from in the in the scenario of an inference from silence. And but that's not exactly the explanation, which is being given. So some of those things might need to be reviewed and revisited just to make sure and interesting studies have been done in in England and Wales in relation to detainees understanding of the inference provisions. And again, it goes. It's also part of the function of the solicitor to try to explain that to them as well, which can be difficult to do. But goes again to the importance of having a solicitor if you are. And it's good to have the safeguards and that that's a benefit of having the legislation. But if you have a whole thing that has serious consequences for someone and you can't even explain it to them clearly. When they're in, you know, added to the fact they're in in a guard interview, it's stressful and surreal and terrible. You know, that's just it's it's problematic. And so I'm really looking forward to. I'm all signed up for those webinars and I'm looking for it to hearing more by the project as it disseminates. We'll also be publishing more on the interviews we did with the 44 solicitors with another piece coming out on interpreters, but that's a whole other podcast on the whole other day. But thank you so much Ivaran for joining us to talk about these issues that I think we don't get to think about on an everyday basis in Ireland. It's always something just that you know it'll only arise if the need occurs, but it's important for people to understand how all of this is going. So really appreciate you taking the time out to talk about all of us over here at Police to the Beat and I'm sure we'll have you on again at another time. Thanks very much. I love talking about these issues. They're important issues and as you say you don't know how to wait until a crisis arises to look at them and there are issues as well that people working in the process maybe have become used to or they just sort of accept them and just know that that's the way things are. But until someone comes along and says, "Why is it operating this way? Could it be done a different way?" You know the issue starts just bubble on so I'm more than happy to discuss on this occasion and any future occasion. Thanks, Bikki. Thank you. Police to Ireland this series will be returning in late May with our first-hand experiences people are having of the guards in Ireland. And I'm also going to be doing a lot of episodes through the Beat looking at the new policing security and community safety bill, which is really important. We're going to break that down. Take it step by step with different experts on different topics. And Johnny Connelly is lined up to talk to us about community safety and Lord David Anderson, former inspector of terrorism legislation in the UK is also going to talk to us about the equivalent role that's being created in Ireland. So loads coming up on the beat. Thank you for supporting us at patreon.com and we'll speak to you again soon.