Legal Analysis

ECtHR, Doyle v. Ireland


May 2019 – Ireland

On 23 May, the European Court of Human Rights (ECtHR) issued its ruling in the case of Doyle v. Ireland concerning an applicant complaining that he was not allowed to have his counsel present during his police interrogations. The ECtHR did not find a violation of his right to a fair trial (Article 6 § 3 (c) ECHR), confirming the Irish Court’s view that the audio-visual recording of the police interview fulfilled the same purpose as a lawyer present with regard to preventing coercion and ill-treatment by the police.

In our view, this judgment confirms a worrying trend towards restricting access to a lawyer in police custody, and suggests that audiovisual recording of a police interview is an equivalent safeguard to the presence of a lawyer.

Background facts

  • The applicant was arrested on suspicion of murder hours after the death of the victim, in early 2009.
  • The police interrogated the suspect 23 times for approximately 31 hours in total.
  • The applicant was in contact with his lawyer via telephone, but the calls lasted for only a few minutes.
  • On two occasions, police officers denied his request to consult with his counsel (since then, the EU Access to a Lawyer Directive¹ came into force and, building upon the ECtHR’s Salduz judgment, now requires a suspect or accused person to be granted access to a lawyer during interrogations in police custody).
  • The police also arrested the applicant’s ex-girlfriend and the mother of his little daughter, whom she could not take care of while in detention, and informed the suspect of the arrest during the interrogations, with a view to obtain a confession.
  • The suspect ended up confessing to the murder, and was subsequently found guilty.
  • In the national proceedings, it was concluded that there had been no violation of the applicant’s right to a fair trial.

Application of the two-stage test

In its judgment, the ECtHR applied the two-step test which it developed in its latest case-law (most recently, in Beuze v. Belgium).

  1. First, it held that the applicant had had a right under the Irish law at that time to have a lawyer present, and the fact that the applicant’s lawyer could not be present during his police interviews amounted to a restriction of his right of access to his lawyer. As the restriction to his right under Article 6 § 3 (a) resulted from police practice at the time, there was no individual assessment of the applicant’s circumstances. The restriction was of a general nature. In the circumstances, there is nothing to suggest that the restriction was justified by compelling reasons, within the meaning of the Court’s case-law in Ibrahim and Others.
  2. Second, the ECtHR proceeded to assess the overall fairness of the proceedings, and found that the absence of a lawyer during the interrogations did not impact the overall fairness of the proceedings. The ECtHR, in particular, did not find that the applicant was vulnerable but was physically and mentally strong throughout the interviews, noting in particular that he chose when and when not to engage with the police.

Analysis of the police interrogation tactics

The ECtHR noted that the Irish courts had examined very carefully the question of whether there had been threats or an inducement by the police, and that the trial judge reviewed the video recordings of the relevant interviews in their entirety. The ECtHR found convincing the reasoning of the trial judge that even if the actions of the police could have been considered a threat or inducement, they did not have any link with the applicant’s confession because of the passage of time and the fact that the applicant had an opportunity to consult with his solicitor both in person and by telephone immediately prior to making the admission.

Audiovisual recording as a key safeguard against coercion

With regard to the impact of the police tactics on the overall fairness of the proceedings, the ECtHR followed the Irish Court of Appeal and the Supreme Court who had considered to be a key safeguard the fact that all the police interviews had been recorded on video and that those videos were available to the judges at all three levels of jurisdiction and the jury at trial. The ECtHR recognised that the audiovisual recording acted to maintain pressure on the police to act in conformity with the law and enabled the domestic courts to make well informed decisions when considering whether it was possible to admit the evidence obtained in police interview.

The ECtHR noted that both the presence of a lawyer during police interviews and the audio-visual recording of the interviews both act as safeguards against coercion and ill-treatment by the police. This led the ECtHR to conclude that audiovisual recording was, therefore, a sufficient safeguard.

This view was not shared by Judge Yudkivska. In her dissenting opinion, she noted that the presence of a lawyer could have prevented the police officers from coercing the applicant into confessing. Judge Yudkivska pointed out that the jury was in fact only shown excerpts of those video recordings and it was unclear whether the jury had in fact observed the footage of the crucial moments of the applicant’s intimidation. Judge Yudkivska came to the conclusion that the overall fairness of the proceedings was irreparably compromised due to the absence of the applicant’s lawyer during his police interviews, the lack of sufficient advice provided during the short telephone conversations/meetings and primarily, due to the fact that the applicant’s confession, which formed the crucial basis of his conviction, was obtained following clear pressure and intimidation by police officers in the absence of his lawyer.

Fair Trials has recently conducted research on the benefits of audiovisual recording of police interrogations. For more information about our findings, please see here. However, as we highlight in our findings, audiovisual recording cannot replace the presence of a lawyer during police interrogations, which remains in our view a key safeguard in pre-trial proceedings, as recognised by the EU Directive on Access to a Lawyer.

You can read the full judgment here.

¹Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.