Restriction on right of access to a lawyer during police interviews did not breach the right to a fair trial
Doyle v. Ireland 23.05.2019 (no. 51979/17)
Access to a lawyer during police questioning. The applicant’s complaint that the right of access to a lawyer was confined during his examination by the police regarding intentional homicide. Although the applicant could consult his lawyer before and after the questioning, police practice at that time did not allow lawyers to appear during the interrogation. The Court found that very strict scrutiny had to be applied in cases where there were no compelling reasons to justify limiting the applicant’s right of access to a lawyer. However, in its examination of the proceedings as a whole, the ECtHR considered that the overall fairness of the proceedings had not been violated. No violation of Article 6 §§ 1 and 3 (c) (right to a fair trial and entitlement to legal aid) of the ECHR.
The applicant, Barry Doyle, is an Irish national who was born in 1985 and lives in Dublin (Ireland). He
is currently serving a life sentence in Mountjoy Prison, Dublin.
Mr Doyle was arrested in February 2009 in connection with the killing of a man, S.G., which had
taken place in November 2008. The applicant was taken to a police station, where he was informed
of his rights and given immediate access to a particular solicitor, with whom he consulted prior to
the first police interview.
He was subsequently interviewed many times and had access to a solicitor, both in person and by
telephone, between interviews and for as long as he or the solicitor requested. At the applicant’s
request, one interview was stopped to enable him to consult further with the solicitor. However, all
of the interviews were conducted without the solicitor being physically present in the interview
He admitted killing S.G. in the fifteenth interview and gave a number of details about the crime. The
police questioned him several more times after that.
After a jury failed to reach a verdict in 2011, he was again tried in February 2012. He sought to have
his admissions excluded, arguing that he had been induced, threatened, and denied access to legal
advice. The trial judge dismissed his objections and in February 2012 he was found guilty by the jury
of murdering S.G. and given a life sentence. Appeals to the Court of Appeal and the Supreme Court
were unsuccessful. The judges of the Supreme Court, which rejected his appeal by a six votes to one
in January 2017, discussed in detail the right of access to a solicitor during questioning by the police.
THE DECISION OF THE COURT
Article 6 §§ 1 and 3 (c)
The Court reiterated that the right of every accused to be effectively defended by a lawyer
constituted one of the fundamental aspects of the right to a fair trial (Beuze v. Belgium). According
to its case-law, the applicable test under Article 6 §§ 1 and 3 (c) consisted of two stages – first
looking at whether or not there were compelling reasons to justify a restriction on the right of access
to a lawyer and then examining the overall fairness of proceedings.
As regards the first stage, the Court observed that Mr Doyle had been entitled to and had been
granted access to a lawyer after his arrest and prior to being interviewed by the police. After that
first interview he had been able to request access to his lawyer at any time. However, in accordance
with police practice at the time, his lawyer had not been permitted to be physically present during
the interviews themselves. Therefore, the restriction on his right of access to a lawyer had been of a
general nature and had not been justified by compelling reasons.
When looking at the second stage of the applicable test and assessing the overall fairness of the
proceedings, the Court considered firstly that Mr Doyle, being an adult and a native speaker of the
language in use, had not been particularly vulnerable. It did not see any reason to call into question
the assessment of the domestic authorities, which had examined very carefully whether there had
been any threat or inducement by the police during the interviews. All three domestic courts had
established that his admissions had not been brought about by inducement or threat.
Mr Doyle had been able to challenge the admissibility of evidence and to oppose to its use at every
stage of the proceedings, including a 10 day voir dire (a trial within a trial to determine the
admissibility of evidence). Moreover, sound public-interest considerations had justified prosecuting
Mr Doyle, who had been charged with murder. The trial had followed the killing of an innocent
victim as a result of mistaken identity in the context of a feud between criminal gangs, which had
required the respondent state to take appropriate measures. There had been other procedural
safeguards, such as the fact that all police interviews had been recorded on video and had been
made available to the judges and the jury. Lastly, the jury had received careful instructions from the
trial judge in relation to their consideration of the evidence deemed admissible.
The Court observed that while the Supreme Court had engaged extensively with the Court’s case-law
on the right of access to a lawyer, the majority had wrongly concluded that that right did not extend
to having a lawyer physically present during police interviews. It also noted that police practice in
the respondent State had since changed. Having assessed the impact of the restriction on access at
the pre-trial stage on the overall fairness of the criminal proceedings, the Court concluded that their
overall fairness had not been irretrievably prejudiced.
There had accordingly been no violation of Article 6 §§ 1 and 3 (c).
Judge Yudkivska expressed a dissenting opinion. This opinion is annexed to the judgment(echrcaselaw.com editing).