The shifting focus of criminal proceedings from the trial to the pre-trial stages leads to a changing role of criminal defence practitioners across Europe. European criminal defence lawyers are now expected to enter the proceedings earlier and exercise "active" and "participatory" defence as early as the investigative stage. Criminal lawyers, trained in the traditional trial-centred paradigm, are ill-prepared for this role, which results in an important skills gap. Legal representation at the investigative stage presents unique challenges, such as shortage of information, time pressures and the closed nature of pre-trial proceedings. It requires lawyers to operate in a more complex communication environment, than the one to which they have been accustomed. This article sets out the main elements of a professional training programme aiming to fill in the emerging skills gap. The training programme (SUPRALAT) was successfully implemented in Belgium, Hungary, Ireland and the Netherlands, and is being expanded further. The training focuses on effective communication skills, experiential learning and the development of reflective skills. It includes elements of interprofessional training and encourages the development of "communities of practice".
Limited attention has been paid to the realization of the right to interpretation in the police station. What has been done often focuses on the police or the interpreter experience. We seek to address this lacuna by focusing on the extent to which the right to interpretation is realized in Ireland. We start by outlining the nature of the right at international and European levels, and exploring the reasons why the right is so important. We consider how this has been implemented in Ireland, and note how even on paper there are significant, fundamental concerns as to how the effectiveness of the right is achieved. We then present findings from semi-structured interviews with over 40 criminal defence solicitors in Ireland, with experience of attending police interviews. The findings show that solicitors have concerns about the process of securing interpreters, the quality of the work, their independence, their understanding of their role, the overall impact on the process and the urgent need for training. It is abundantly clear that the right cannot be effectively realized under the current system in Ireland, despite the Directive on Interpretation being in effect there. Further, we note that solicitors are often uncertain and unclear on the extent of the right and what they can ask for. This means that those who are defending the rights of the detainee are unlikely to challenge breaches as they occur. The right to interpretation is clearly deeply neglected and ineffective in Ireland.
This article sheds comparative and contextual light on European and international human rights debates around the privilege against self-incrimination and the right to silence. It does so through an examination of adverse inferences from criminal suspect’s silence in three European jurisdictions with differing procedural traditions: Ireland, Italy and the Netherlands. The article highlights the manner in which adverse inferences have come to be drawn at trial in the three jurisdictions, despite the existence of both European and domestic legal protections for the right to silence. It also explores differing approaches to the practical operation of inference-drawing procedures, including threshold requirements, varying evidential uses of silence and procedural safeguards. The authors argue that human rights’ standard-setting institutions ought to provide clarity on the conditions under which adverse inferences may be tolerated, including the purpose(s) for which inferences may be used, and the necessary surrounding safeguards.
In Ireland, the right to silence has been significantly impacted by the legislative introduction of adverse inference provisions. In specified circumstances, with varying threshold requirements, a suspect’s failure to answer questions or provide information during Garda (police) questioning can form the basis of an inference against them at trial. Ireland has not opted in to either Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence or Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. This article examines the constitutional and common law context of the protection of the right to silence in Ireland; the operation, and expansion, of the statutory inference regime; the lack of legislative provision for a right to legal assistance during Garda interview; and relevant European Court of Human Rights jurisprudence. While there are some benefits to overt legislation and safeguards attached to the drawing of inferences from pre-trial silence, the question must be asked whether a detained suspect in Ireland truly has a protected right to silence in real terms, given the proliferation of inference provisions.
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