CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 mai 2019

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background-color:#ffffff } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s25F5CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:10pt } .s35F9952E { font-family:Arial; font-size:6.67pt; font-style:italic; vertical-align:super } .sCC10025D { font-family:Arial; font-size:10pt; color:#111111 } .s4B570747 { font-family:Arial; font-size:10pt; color:#333333; background-color:#ffffff }     FIFTH SECTION           CASE OF DOYLE v. IRELAND   (Application no. 51979/17)                         JUDGMENT       STRASBOURG   23 May 2019   FINAL   23/08/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Doyle v. Ireland, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Ganna Yudkivska,   André Potocki,   Síofra O’Leary,   Mārtiņš Mits,   Gabriele Kucsko-Stadlmayer,   Lado Chanturia, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 2 April 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 51979/17) against Ireland lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mr Barry Doyle (“the applicant”), on 12 July 2017. 2.     The applicant was represented by Fahy Bambury, a firm of solicitors based in Dublin. The Irish Government (“the Government”) were represented by their Agent, Mr Peter White, of the Department of Foreign Affairs. 3.     The applicant complained that, following his arrest, he was not entitled to have a solicitor present during his police interrogation, representing a failure by the respondent State to vindicate his right to a fair trial as provided in Article 6 § 3 (c) of the Convention. 4.     On 18 January 2018 notice of the application was given to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1985 and is currently serving a life sentence for murder in Mountjoy Prison, Dublin. 6.     In the early hours of 9 November 2008, the applicant killed a man in Limerick. It was a case of mistaken identity. The applicant had set out to kill another man at the behest of a well-known criminal figure in the city in the context of a feud between criminal gangs. The applicant mistook the victim, S.G., who had no connection whatsoever to the criminal milieu, for the intended target. S.G., who was 28 years old, was walking home when the applicant shot and wounded him on the street. He then pursued his victim into the back garden of a nearby house where he shot him several times, inflicting five wounds in all, including a fatal head wound. 7.     On 24 February 2009 investigating police carried out a search of the applicant’s residence. They arrested him there at 7.15 a.m. He was brought to a police station shortly before 8.00 a.m. There he was informed of his rights, including a right of access to a solicitor. He requested legal advice from a particular solicitor, whom the police duly notified. At 9.55 a.m. the solicitor telephoned the police station and spoke to the applicant. This first consultation lasted two minutes. 8.     The first police interview commenced at 10.12 a.m. and lasted fifty minutes. All of the interviews were video recorded, and were conducted without the applicant’s solicitor being physically present in the interview room. At no stage did the applicant or his solicitor request the presence of the latter during questioning. It was confirmed during the subsequent proceedings that, in view of police practice at that time, such a request would have been denied. 9.     Another solicitor, Mr O’D., who was acting on behalf of the first solicitor, arrived at the police station at 11.00 a.m. and represented the applicant from that point onwards. The police concluded the first interview at 11.03 a.m. The applicant then had a consultation with the solicitor lasting nine minutes. The second interview commenced at 11.19 a.m. and lasted twenty-three minutes. The third interview started at 12.07 p.m. and lasted one hour and fifty-four minutes. The fourth interview began at 3.00 p.m. and had a duration of one hour and thirty-nine minutes. The fifth interview, beginning at 5.59 p.m., lasted for two hours and seven minutes. The final interview of the day took place between 10 p.m. and 11.42 p.m., a duration of one hour and forty-two minutes. The applicant, who did not request or have any further contact with his solicitor that day, did not make any admissions to police. 10.     The following day, 25 February 2009, the police continued to question the applicant. Three interviews took place in the morning and afternoon, lasting almost five hours in total. The applicant was brought before the District Court, which extended his detention for a further 72   hours. His solicitor was present at the court hearing. The applicant was brought back to the police station where another interview, the tenth, took place between 10.38 p.m. and 11.25 p.m. During this interview, the police informed him that his former girlfriend, G, who was also the mother of his young daughter, had been arrested in Dublin early the previous morning on suspicion of withholding information. She was being held in detention and interviewed by police about her knowledge of the killing. He was given certain details about her replies to police questions. Once again, the applicant did not request further consultations with his solicitor and did not make any admissions. 11.     The interviewing of the applicant continued on 26 February 2009. The eleventh interview began at 9.03 a.m. and lasted seventy-two minutes. Questioning recommenced at 12.22 p.m. for one hour and twenty-one minutes. The police impressed on him that G was enduring the hardship of detention as well as separation from her young daughter on account of the applicant’s refusal to admit to the crime. They also underlined the fact that the victim had been an entirely innocent man. The thirteenth interview took place between 3.02 p.m. and 4.15 p.m. During it, the applicant asked to consult his solicitor. Questioning stopped while the police made contact with the solicitor. The consultation between the applicant and his solicitor was again by telephone. It lasted approximately two minutes. 12.     The next interview, the fourteenth, commenced at 5.32 p.m. In the first minutes, the police asked the applicant about text messages sent to Ms   G. around the time of the murder. At some point the applicant asked to speak to his solicitor again. The interviewers replied that he had just spoken to the solicitor, to which the applicant said that he had not been able to speak to him properly. It is not clear from the documents in the case-file when this occurred. The interview continued. At around 6.15 p.m. the applicant again asked to speak with the solicitor, saying that he would answer questions afterwards. A moment later the interview was briefly suspended while one of the officers left the room to fetch a glass of water. He returned at 6.20   p.m. and for the remaining 15 minutes the officers questioned him about his background and his sporting interests. Before ending, they informed him that Ms G was alright. The interview concluded at 6.35 p.m. 13.     As requested by the applicant, the solicitor arrived at the police station at 6.52 p.m. He and the applicant spoke for about ten minutes. According to a memo written by a police officer some hours afterwards, the solicitor then approached the officers conducting the interviews and told them, on an off‑the‑record basis, that the applicant was prepared to admit to the murder provided that Ms G. was released. The police replied that they wanted the applicant to tell the truth about the killing. The solicitor conferred again with the applicant for ten minutes and then informed the police that there would be no admissions before Ms G.’s release. The police replied that a confession taken in such circumstances would not be accepted in court, as it would be regarded as inducement. The solicitor then consulted with the applicant for a further 10 minutes, after which he indicated to the police that the applicant would not admit to anything prior to Ms G. being released and then left the police station. 14.     The fifteenth interview commenced at 7.42 p.m. The applicant refused to answer the first two questions posed to him, but then stated that he had been present at the scene around the time of the murder. At that moment another police officer entered the interview room and stated that the applicant’s solicitor had telephoned the station and wished to speak to him. The interview was immediately suspended to allow the applicant confer with his solicitor. This consultation took about four minutes. When the interview resumed at 7.51 p.m., the applicant admitted to shooting the victim. As the interview continued, he provided a number of other details about the crime: how he had been driven to the scene in a particular car; the clothes he had been wearing and which he had burned later; how many shots he had fired, and where; the fact that he had used his right hand to shoot; the fact that the gun had jammed and that he had cleared it by ejecting bullets. He also sketched a map of the crime scene to indicate where each event had taken place. Beyond this, he refused to answer the questions put to him. The interview ended at 9.05 p.m. At the conclusion of the interview, the applicant made a particular gesture. He removed a set of rosary beads that he wore around his neck as a memento of his dead brother, and asked the police give them to the victim’s family. 15.     The sixteenth interview took place between 10.09 p.m. and 11.29   p.m., a duration of 90 minutes. The police repeatedly asked him to explain why he had killed an innocent man, but the applicant refused to answer. 16.     By that time, Ms G. was no longer in custody, having been released at 9   p.m. that same day. 17.     There were five further interviews the next day, 27 February 2009, with a combined duration of seven hours and twenty-seven minutes. The applicant continued to refuse to answer the questions put to him about the identity of the intended victim, about his own association with a well ‑ known criminal figure in the city, and about calls and messages to and from his mobile phone around the date of the murder. In the twentieth interview, held that evening, he indicated on a map how the crime had unfolded, and stated that when he caught up with him in the back garden, the victim had said “please stop” just before the fatal shots were fired. 18.     Two further interviews were held on 28 February, lasting two hours and three minutes in all. The police showed the applicant various items of evidence retrieved from the scene of the crime, including unfired bullets, bullet casings, bullets removed from the victim’s body, and items of the victim’s clothing. He made no comment on this or any other question put to him. At 3.15 p.m. police charged the applicant with murder and brought him before the District court. 19.     The applicant pleaded not guilty. He was tried in the Central Criminal Court. The first and second criminal trials 20.     The first trial, in 2011, was inconclusive, the jury failing to reach a verdict. 21.     The second trial commenced on 16 January 2012 and lasted 22 days. At the outset, the applicant sought to exclude the admissions he had made to the police. In accordance with domestic law, his challenge was considered by the trial judge in the absence of the jury. This process, a voir dire (a trial within a trial to determine the admissibility of evidence) took ten days. The trial judge viewed more than twenty hours of the video records of the interviews. During that process, the recording of the interview was played on screen and then the interviewing officers gave evidence concerning the videos and were cross-examined by the legal representatives for the prosecution and defence. At the end, counsel for both sides made submissions to the judge in regard to the questions of inducement of threat, oppression and fairness. 22.     On the eleventh day of the trial the judge ruled as follows: “The defence object to the prosecution proposal to call evidence of various admissions made by Barry Doyle in the course of interviews that took place while he was in custody .... The defence contend that these admissions are inadmissible and rely on three grounds. 1)     That the admissions were made involuntarily as a result of a combination of threats, inducements and oppression. 2)     That the admissions were made as a result of breaches of the accused’s constitutional right of access to legal advice. 3)     The admissions were made as a result of breaches of the requirement of fundamental fairness. ... The onus of proof in respect of admissibility is on the prosecution and if confessions are to be admitted in evidence the Court must be satisfied beyond a reasonable doubt that it is proper to do so. ... With regard to the question of legal access Barry Doyle had two consultations with his solicitor while he was in [the police station] prior to making admissions and he was also represented by that solicitor in court when an application was made to extend his detention. The Court does not consider the length of time that either consultation lasted to be relevant in the context of this case. The Court also holds that the [police] were entitled to continue interviewing Barry Doyle in interview 14 when he had complained that a short telephone conversation with his solicitor was not a proper consultation and when his solicitor’s arrival at the [police] station was expected within an hour. The Court is satisfied that there was no breach of Barry Doyle’s constitutional right to legal advice. In considering the question of oppression the Court observed Barry Doyle in video recordings over a period of in excess of 20 hours and holds that he appeared to be physically and mentally strong throughout. He engaged with the [police] when he chose to do so and refused to answer questions when he did not wish to do so. ... With regard to the questioning by [the police officers], the Court finds that the interviews were conducted in a careful, patient and structured way in which some of the results of the [police] investigation were gradually revealed to Barry Doyle. The Court also holds that Barry Doyle first began to engage with [the police] in a limited way, essentially as a result of [their] appeal to Barry Doyle’s humanity. This engagement was built on ... and ultimately the accused told the [police] about his involvement in the death of [S.G.]. The Court holds that the interviews conducted by [police] were at all times professional and courteous and involved no oppression. The Court also holds that Barry Doyle was in full control of himself throughout the interviews and holds that he made the admissions that he did because he chose to do so. With regard to the question as to whether some of the promptings by the [police] to Barry Doyle to the effect that he should tell the truth and not keep [G] away any longer from their child, the question arises as to whether this, or any other related promptings made prior to interview 15 and relating to the release of [G], could amount to an inducement. The first thing to be said is that these remarks must be viewed in the overall context of all that had taken place, which included the various responses of Barry Doyle regarding the death of his brother, the responses regarding his own family, his children by a previous relationship to his relationship with [G], as well as read or taken in the context of the limited answers he had given about living in Limerick and the fact that he had conceded ... that being in custody on suspicion of the murder of [S.G.] was the lowest point in his life. The context also includes the gradual unfolding of the evidence in the case to him and the context further includes numerous appeals to him to tell the truth. Notwithstanding the context in which they occurred, ... even if these promptings could possibly amount to an inducement when objectively viewed they were not immediately acted on and their effect, whatever it may have been, was dissipated by the consultation Barry Doyle had with his solicitor and his solicitor’s interaction with [the police]. This broke any possible causative link and it is highly relevant that the solicitor told the detectives that Barry Doyle would not admit to the offence and that they would have a bit more work to do. The Court holds that when Barry Doyle came to make his admissions in interview   15 he made them voluntarily. Accordingly, the Court holds that the admissions were made not as a result of oppression and were not made as a result of any threat or inducement. Finally, the Court has considered the objection made by the defence that the admissions were made as a result of a breach of fundamental fairness. The Court has considered all the objections in the round and bears in mind [the relevant Supreme Court case-law]. The Court holds that there is no breach of the requirements of fundamental fairness and accordingly holds that the confessions made by Barry Doyle are admissible in evidence.” 23.     Following the conclusion of the voir dire proceedings, the trial resumed. The jury was shown excerpts from the video recordings and received transcripts of the interviews. There was other evidence before the court. This included ballistic evidence, evidence about the car the applicant had travelled in, and evidence given by G. There was evidence from another witness, C, who said she had been present when the killing had been ordered, and, the day after the murder, had heard the applicant confirm that he had carried it out. 24.     Following the final submissions of the prosecution and defence, the judge summarised the case and gave instructions to the jury in the Judge’s Charge. He instructed the jury to be careful when considering the evidence and underlined their obligation to examine neutrally the question of whether the applicant had been induced to confess to the crime, with a detailed explanation of what that meant in the circumstances. The judge also warned the jury that it may be dangerous to convict a person on confession evidence alone without corroboration. The judge went on to explain in detail why that was the case, and what corroboration evidence meant in the circumstances. 25.     On 15 February 2012 the applicant was unanimously convicted by a jury of the murder of S.G. He received the mandatory sentence of life imprisonment. The Court of Appeal 26.     The applicant appealed against his conviction, raising 27 grounds. The Court of Appeal dismissed the appeal on 8 June 2015. Insofar as relevant, the Court of Appeal decided as follows. 27.     It first dealt with the submission that the police had resorted to inducement or threat to elicit his confession to the murder. It agreed with the position taken by the trial judge that the fact that the applicant had consulted with his lawyer immediately before admitting the crime in the fifteenth interview represented a significant interruption in the process of police questioning. Of even greater significance was the fact that the police rejected the proposal of the applicant to confess in return for the release of G, which the solicitor conveyed to the applicant. With no room for ambiguity or misunderstanding in this respect, the response of the police was sufficient to refute the argument about inducement or threat. Nor did the Court of Appeal accept that, during the course of the interviews, the police resorted to implied inducement or threat. It considered that, as found by the trial judge, the transcripts showed the police trying to appeal to his better nature and to his essential humanity. This interpretation of the evidence was borne out by the applicant’s gesture of remorse following the fifteenth interview (see paragraph 14 above). It was also supported by the fact that the applicant had retained a degree of precision and control over the admissions he was prepared to make. He provided certain precise details to the police about his own actions but gave nothing away about the other persons implicated in the murder. The fact that he did not ask about G’s release after admitting the murder further suggested that there was no element of inducement. It concluded on this point: “48.     The Court holds that the learned trial judge was entitled to find on the evidence that the prosecution had established that the admissions made by the appellant were not brought about by any inducement or threat. The Court is also satisfied that the judge’s interpretation of the interviews was correct. It concludes that the proposal by the appellant’s solicitor not only dissipated any possible belief in an offer by the [police] but also constituted an approach that actually negated belief in an inducement ...” 28.     The Court of Appeal then considered the argument that the applicant had not been granted sufficient access to legal advice and, as a result, had been subjected to oppression during questioning. The applicant further complained of irretrievable prejudice caused by the continuation of the fourteenth interview despite his request to consult his solicitor, which was not cured but actually compounded by the subsequent consultation. The judgment states: “69.     The appellant had access to his solicitor for as much time and on as many occasions as he or his lawyer requested, in which circumstances it is hard to see how he can say that there was oppression because of the inadequate legal advice availability. The solicitor ... did not ask to be present for the interviewing by the [police]. No doubt, had he asked for that facility, it would have been refused but that simply did not happen and it was not the understanding at the time that a lawyer was entitled to be present. That, however, does not make the detention of the appellant retrospectively unconstitutional on the basis of a hypothetical refusal of a request that was not made. ... 72.     It was submitted by the appellant that if a solicitor had been present throughout the interviewing of Barry Doyle, the interviews would have proceeded differently. But it is by no means clear that that would have been of any great assistance to him; the questions would still have been asked and he could well have been in the same situation of deciding that he was going to confess to the extent, limited in degree as it was, that he actually did in interview 15 and followed up in later interviews.” 29.     The Court of Appeal again referred to the fact that all interviews had been recorded, so that the trial judge was able to see precisely what had happened during them. The police had respected the custody regulations, and while they had repeatedly questioned him they had permitted him breaks and access to a solicitor. There was no sign of oppression or unfairness. 30.     The Court of Appeal also reviewed in detail the content of the Judge’s Charge to the jury, following a challenge that it had been inadequate and incorrect, and it rejected that complaint. It considered that most of the challenges to the judge’s charge concerning the applicant’s admissions amounted to a complaint that the judge’s charge had not adopted the applicant’s arguments. The Court of Appeal rejected this recalling that “118.     It would not have been correct for the judge to tell the jury what the appellant wanted him to say” and “121     ... it is not the function of the trial judge to make another speech either for defence or prosecution ...”. The Court of Appeal also noted that the applicant criticised the Judge’s Charge on the question of the dissipation of inducement or threat, and recalled that the judge had consulted with the lawyers of both parties in advance on the presentation of that issue and both had indicated their agreement. Overall, the Court of Appeal concluded: “159.     The appellant’s advisors legitimately advanced every ground of objection in defending their client. All of their extensive submissions were fully ventilated and carefully considered by the trial judge. The many issues were re-visited in a hearing in this Court that occupied two full days of oral argument and which were also explored in comprehensive submissions that were of great assistance to the Court. 160.     The Court is satisfied that none of the grounds of appeal can succeed. The trial was satisfactory and the conviction of Mr Doyle was safe.” The Supreme Court 31.     On 8 June 2015 the Supreme Court granted leave to appeal, identifying three issues for examination, one of which is of central relevance to the present application: “Whether or not the appellant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present, prior to and during the 15 th   interview with the [police], during which admissions were alleged to have been made. This raises the question of whether the right to have a solicitor present during questioning is a matter of right of the detained person, or a matter of concession by the [police]. Whether the matters set out in the applicant’s application, under the heading ‘relevant facts considered not to be in dispute’, or any of them, constituted threats or inducements to the applicant, and calculated to extract a confession from him. This is a matter not decided by the court of trial, or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had ‘dissipated’, or ‘worn off’, by the time of the admissions relied on by the State, as held by the trial judge, and whether or not there was any evidence on which it could have been determined that the effect of these threats, or inducements, (if any), had ‘dissipated’, or ‘worn off’, by the time of the alleged admissions.” 32.     On 18 January 2017 the Supreme Court dismissed the appeal, by a majority of six to one. Six members of the court gave judgment. 33.     In the first judgment, the Chief Justice limited her remarks to the first issue above. She recalled that reasonable access to a solicitor was a constitutional right for persons in detention. As a matter of constitutional law, the concept of basic fairness of process applied from the time of arrest, as the Supreme Court had recently affirmed in a judgment that took into account the relevant Convention jurisprudence – DPP v. Gormley and DPP v.   White , [2014] IESC 17 (“Gormley”). Since the question of the presence of a solicitor during questioning did not arise on the facts in Gormley, any statements in the judgment on this matter were obiter. She continued: “15.     ... [I]t is clear that the appellant requested access to a solicitor and obtained access to a solicitor. He had access to legal advice. He had access to the solicitor before the important Interview 15, and he had access, at the solicitor’s request, during that interview, when the solicitor phoned in and sought to speak to the appellant as Interview 15 was underway. The interview was interrupted to enable the appellant to speak to his solicitor. There was no request to have the legal adviser present during the interview. 16.     I am satisfied that the constitutional right of access to legal advice was met by the attendance of the appellant with his solicitor prior to Interview 15, and indeed by the telephone call from his solicitor which interrupted Interview 15. 17.     The constitutional right is a right of access to a lawyer. The right is one of access to a lawyer, not of the presence of a lawyer during an interview.” [emphasis in the original] 34.     She considered that the requirements of the Convention had also been met. Regarding the second issue in the appeal she concurred with Charleton J (see below). 35.     The second judgment was given by O’Donnell J, who also confined his analysis to the first issue. He too regarded statements in Gormley about a more general right to the presence of a solicitor during detention as obiter. Referring to relevant Convention case-law he observed: “8.     Given the fact that the jurisprudence of the ECtHR has to date largely been developed in the context of civil law systems with early supervision of investigation by a magistrate, it cannot be said that it has been definitively determined that the Convention requires a bright-line rule that in a common law system, an accused person must have not just access to, but the assurance of the presence of, a lawyer during any detention. This is particularly so because, until now, the Convention jurisprudence has not adopted any absolute rule that evidence obtained in breach of a Convention right must be inadmissible, but rather has applied a test of considering the overall fairness of the proceedings.” 36.     In his view, the legal argument for adopting an absolute rule of presence of a lawyer as a matter of constitutional principle therefore rested almost entirely on the reasoning of the Miranda decision of the US Supreme Court. However, that authority had not been followed in Irish jurisprudence in the fifty years since it was decided. In the present case, the voluntary nature of the confession was not in doubt, and the admission of the applicant’s statement had not been held to be unfair. Were a bright-line rule to be adopted, it would have the potential to exclude key evidence in the shape of statements given voluntarily without the benefit of legal advice in circumstances otherwise beyond criticism. He stated: “14     ... I would for my part stop short at this point of finding that in addition to the videotaping of interviews, the access to and advice from a lawyer (provided if necessary by the State), and the requirement that only statements found to be voluntary beyond reasonable doubt be admitted in evidence, the Constitution nevertheless requires and perhaps has always required, the presence of a lawyer at all times during questioning, as a condition of admissibility of any evidence obtained.” 37.     He concluded: “84.     The appellant’s conviction was based upon a confession of his guilt, supported by significant independent evidence. This included a description by the appellant of what happened at the scene of the crime examination of matters unknown to the garda, and ballistic evidence. The conviction was supported by independent testimony from Ms. [G.], to whom he (the appellant) made inculpatory remarks outside the confines of a garda station. It was corroborated by evidence from Ms [A.], who was present both when the order was given to the appellant to commit the murder, and the following day when the appellant was challenged as to whether or not he had shot the right man, and when he asserted, incorrectly, that he had. The voluntary nature of the confession was proved to the satisfaction of the trial judge based upon a detailed review of all the evidence, including 20 hours of interview process. There is no basis, under the law, upon which it can be contended that the evidence was inadmissible, or that the trial herein was an unfair one. ...” 38.     MacMenamin J gave the third judgment. He recalled that at the time of the applicant’s arrest and trial, the relevant precedent of the Supreme Court, Lavery v. Member in Charge Carrickmacross Garda Station [1999] 2 IR 390, did not accept that a suspect was generally entitled to the presence of a solicitor during police questioning. 39.     He rejected the argument that the applicant’s will had been sapped, notably during the fourteenth interview. While the police had continued to question him even after he had requested another consultation with his solicitor, nothing had been elicited in that interview that had carried through to the next interview. There was no basis to consider that the applicant’s position, at that point in time or subsequently, had been irretrievably prejudiced. 40.     As to the argument that, in light of the Supreme Court’s decision in Gormley and also Convention and US case-law, there was now a right to have a solicitor present during police questioning, MacMenamin J held that it could not succeed in the instant case. He stated: “46.     ... [W]hat I think is imperative to bear in mind, is that here (subject to the point made regarding the immaterial Interview 14), the appellant was granted access to a solicitor at the outset of his custody, during his custody, prior to the relevant interview, and even during that interview. His limited confession was that he accepted that he had killed [S.G.]. Unavoidably, the appellant must face the fact that the logic of what is sought to be applied here is a retrospective recognition and application of a then unrecognised constitutional right to have a lawyer present throughout interviews.” [emphasis in the original] 41.     The judge continued that he would be prepared, in light of recent developments in law and procedures, to recognise in future cases a right under the Constitution to have a solicitor present during police questioning. He then referred to a number of relevant ECtHR judgments, in particular the case of Salduz v. Turkey [GC], no. 36391/02, ECHR 2008. He considered that the facts of the present case were very different, and that the two must be distinguished. He added that, for the purposes of Article 6 of the Convention, the relevant issue was always whether criminal proceedings as a whole had been fair. 42.     Charleton J, with whom Laffoy J concurred, dealt first with the inducement issue. He reviewed in detail the applicant’s evidence and the circumstances in which it was taken by police. He considered that in the thirteenth interview the references to G’s situation constituted a clear inducement to confess. However, the fact that he was granted access to independent legal advice from his chosen solicitor was important. He then referred to several factors – including the evidence of remorse, the fact that the applicant limited his admissions to his own role, the fact that he did not retract his statement, and the gesture involving the beads – which constituted material on which the decision of the trial judge could reasonably be made. The decision could not be disturbed. 43.     On the issue of access to a solicitor, Charleton J noted that the Court of Appeal had followed the existing Supreme Court case-law to the effect that there was no constitutional right to have a solicitor present during questioning. The Gormley case had not established such a right, since this point had not arisen on the facts of that case. While the fundamental requirement of basic fairness applied from the time of arrest, it did not necessarily follow that all of the safeguards of a fair trial, especially legal representation, must also be applied in full from the outset. 44.     O’Malley J agreed that the appeal should be dismissed. However, she took a different approach to MacMenamin and Charleton JJ in relation to the implications of the right of access to legal advice. She agreed with the conclusion of MacMenamin J that there was no causative link between the applicant’s admissions and the absence of the solicitor during questioning, and that this was sufficient to dispose of the issue in the present case. However, she considered that the issue might properly arise for consideration in another case. She saw some strength in the argument that this should now be regarded as a right flowing from the constitutional right to a fair trial. The State had in effect anticipated this by modifying police practice in this respect. She noted that the issue might arise in the context of statutory provisions that permit the drawing of inferences from a failure to answer questions. As this was not an appropriate case to reach a definitive view, she reserved her position on the question. She stated: “71     ... I consider that the question of the existence of such a right does not truly arise on the admittedly unusual facts of this case. 72.     Largely, this is because of the unusually central role, discussed above, taken by [the solicitor] in the events immediately preceding the admissions. Prior to that, it is true that the appellant did not see his solicitor for any great length of time. However, it is also clear that he was aware of his right to see him; that he saw him when he wanted to, for as long as he wanted; and that he was under no pressure to relinquish or curtail his right of access. It is also clear that while he answered some questions in some interviews he did not incriminate himself prior to Interview No.15. 73.     I do not accept the contention that the statement by the appellant (in Interview   No. 14) that he would answer questions when he saw his solicitor demonstrates that he was ‘irretrievably prejudiced’ by the [police] decision to continue asking questions despite the request for the solicitor. I cannot see that it should be interpreted as a decision to incriminate himself - he committed himself to nothing, and certainly not to admitting guilt. There is no evidence that his will was overborne to any extent, still less to the extent that a consultation could not assist him. 74.     The actual admissions came about in the circumstances discussed above. The role of the solicitor was, in fact, far more central than would be envisaged where a lawyer is present in the interview room - the [police] and the appellant were actually communicating through him, rather than directly with each other. He had complete privacy to advise his client while carrying on the discussion with the [police] and also a greater degree of control than would be normal over what was said on behalf of the client and how it was presented. For the reasons already discussed, therefore I consider that not only was the trial judge entitled to conclude that the admissions were the result of a fully voluntary decision by the appellant, but that there is nothing to indicate that the exercise of the right now contended for would have altered the situation in any material respect.” 45.     McKechnie J dissented. On the issue of the presence of the solicitor during questioning, he first rejected the applicant’s argument that the amount of contact he had had with his solicitor during the period of detention did not amount to reasonable access. The real question at issue was if, where reasonable access to legal advice has been afforded, a solicitor’s attendance at the interview process was as of right or by concession. He referred to the recent change of police practice in this respect and observed: “136.     [A]lthough this newly-established practice is not definitive in the legal analysis of whether such a right exists, nonetheless the shifts which I have described, being both potent and influential, are significant and should not be underestimated. Reality, as it now stands, must be faced up to.” 46.     Turning to Convention case-law, he analysed the Salduz judgment and considered that it did not directly support the applicant’s argument. He considered, however, that this Court’s interpretation of Article 6 had evolved since then, citing the following cases: Dayanan v. Turkey , no.   7377/03, 13 October 2009; Navone and Others v. Monaco , nos.   62880/11 and 2 others, 24 October 2013; A.T. v. Luxembourg , no.   30460/13, 9 April 2015; Simons v. Belgium (dec.), no. 71407/10, 28   August 2012; and Brusco v. France , no. 1466/07, 14 October 2010. In drawing out the main points of this case-law he stated: “150.     ... [I]t seems clear that the judgments have made express reference to a suspect’s right to have a lawyer present during the interview process. Thus on one reading it could be said that this right has already been clearly established. However, I am not aware of any decision reflecting the particular facts of Mr. Doyle’s situation ... in which the Court has definitively declared the existence of such right.” 47.     He next referred to Directive 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 (OJ 2013 L 294, p. 1–12). Under the Directive, the right of suspects or accused persons for their lawyer to be present and to participate effectively in during questioning is provided for. Although the Directive did not apply to Ireland, it “illuminate[d] the directional focus” of other EU Member States, and “offer[ed] further evidence of a prevailing trend amongst fellow members of the Union”. Moreover, the Directive had been referred to by in A.T. v. Luxembourg (cited above). In addition, he took note of the position of the Committee for the Prevention of Torture, which considered that the right of access to a lawyer should include the right to legal assistance during questioning (CPT/Inf (2011) 28, at §   24). He then summarised the position in the different jurisdictions of the United Kingdom, noting that in each of them provision was made for solicitors to be present during questioning. In view of all of this material, he saw a “significant shift in the acknowledgment of this right across other diverse legal regimes”: “167.     ... I believe that on balance the existing case law of the ECtHR is already to the effect that the Convention does in fact require the presence of a lawyer during questioning. The judgments [referred to above] and many others, all make express reference to the existence of such a right in clear-cut and deliberate terms. To the reservation that this position has not been definitively spelled out, I believe that if the settled and current trend of dealing with the availability of legal protection should continue, then it is more likely than not that the outcome of any case where the precise point was directly in issue would support the conclusion which I have arrived at. Of course this anticipation may be wrong, but, even if so, the existing state of jurisprudence is of such force in this regard that such of itself is highly influential in calling for such a right. ...” 48.     He then set out a series of considerations in support of according constitutional status to the right to the presence of a solicitor during questioning: the substantial length of detention permitted by law, allowing for multip