Dr Kevin Sweeney: The right to information in criminal proceedings
Dr Kevin Sweeney, author of Arrest, Detention and Questioning: Law and Practice, explores the law in Ireland and the EU on access to information in criminal proceedings in his article for Irish Legal News.
In the Sunday Times newspaper of June 2, 2019, the chairwoman of the Irish Criminal Bar Association, Jane McGowan, has comments attributed to her on the 2012 EU directive on the right to information in criminal proceedings.
The article quotes McGowan as suggesting the possibility of a legal challenge on the basis that a suspect was not given access to their case file, as required by the directive. The directive, according to the article, gives suspects a right to study the prosecutor’s case file, including documents and CCTV footage before a police interview.
The 2012 directive follows from the European Council resolution on a Roadmap for strengthening procedural rights in criminal proceedings in 2009. The purpose was the harmonisation between Member States of the rights of individuals in criminal proceedings to enhance mutual trust and facilitate mutual recognition of judicial decisions.1
The Roadmap would see the incremental adoption of five measures: the right to translation and interpretation (measure A); the right to information on rights and information about the charges (measure B); the right to legal advice and legal aid (measure C); the right to communication with relatives, employers and consular authorities; and special safeguards for suspects or accused persons who are vulnerable (measure E).
Measure B lays down common minimum standards to be applied in the field of information about rights and about the accusation to be given to persons suspected. This is from once a person is made aware that he or she has become the subject of a criminal investigation through the legal process to the court of determination.2 It does not necessarily apply to courts dealing with minor matters such as traffic offences.3
The directive stipulates that suspects be informed about the legal rights available to him or her.4 The Letter of Rights described is equivalent to Form C.72 as currently used in Garda stations throughout the country, which is given in writing and explained orally, through an interpreter as necessary. Further information about the nature of the charge against the person should be made available to him or her.5 The directive states that, without prejudice to the ongoing investigation, this information should be given before the first police interview and should include:
“A description of the facts, including, where known, time and place, relating to the criminal act that the persons are suspected or accused of having committed and the possible legal classification of the alleged offence should be given in sufficient detail, taking into account the stage of the criminal proceedings when such a description is given, to safeguard the fairness of the proceedings and allow for an effective exercise of the rights of the defence.”6
Article 6 par. 3(a) of the ECHR similarly states that everyone charged with a criminal offence must “be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”.
In Mattoccia v. Italy (25/7/2000), the court stated “the accused must at any rate be provided with sufficient information as is necessary to understand fully the extent of the charges against him with a view to preparing an adequate defence”.
In relation to access to materials about the case, the directive states that, unless challenging the lawfulness of the detention, access to material:
“[S]hall be granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation to the judgment of a court. Where further material evidence comes into the possession of the competent authorities, access shall be granted to it in due time to allow for it to be considered”.7
The directive makes a clear distinction between the various stages of the process. What is necessary to prepare adequately for a defence at trial may not be necessary at the preliminary investigation stage. If the lawfulness of the detention is challenged, then evidential material including documents, photographs, audio and video recordings should be provided to the defence. These should be provided before a judicial authority is called upon to make a decision of the lawfulness of the detention.8 The evidential material for or against the accused should be provided in a case file, although provision exists to refuse access in certain circumstances.
The Criminal Procedure Act 1967 sets out how a book of evidence should be served in Ireland. The position in Ireland in relation to evidence is well settled as the result of Braddish v DPP  3 IR 127. Gardaí are obliged to seek all available evidence, not just prosecution evidence. Evidence so gathered should be preserved and not destroyed. Section 35 of the Criminal Procedure Act 2010 provides for a process to notify the defence before any destruction or return of evidence to the owner.
In effect, although not transposed into law in this country, the procedural rights are nevertheless currently in place as laid out in Directive 2012/13/EU.
- Dr Kevin Sweeney is a retired garda with a PhD from University of Limerick School of Law. His book, Arrest, Detention and Questioning: Law and Practice, was published by Clarus Press earlier this year.
1 Directive 2012/13/EU, preamble par. 9-10 referencing art. 82 par. 2 of the Treaty on the Functioning of the European Union.
2 Directive 2012/13/EU, Art.2 par. 1.
3 Directive 2012/13/EU, preamble par. 17.
4 Directive 2012/13/EU, preamble par. 22.
5 Directive 2012/13/EU, preamble par. 27.
6 Directive 2012/13/EU, preamble par. 28; Art. 6.
7 Directive 2012/13/EU, Art. 7, par. 3.
8 Directive 2012/13/EU, preamble par. 30.