Professor Yvonne Daly

In Ireland, we have our own history of false confessions and miscarriages of justice. These include the conviction of Martin Conmey for the manslaughter of Una Lynskey in 1971, the 1978 conviction of Nicky Kelly for the Sallins mail train robbery, the confessions of Joanne Hayes and her family members in the Kerry Babies case in 1984, and the false confession of Dean Lyons to a double murder he did not commit in 1997.

Police interview practices and training have changed significantly in the intervening years in both jurisdictions, partly as a reaction to those recognised miscarriages of justice and their underlying causes. One hopes that we are far from forced false confessions and improper convictions now, as miscarriages of justice not only traumatise those convicted and damage the reputation of the criminal justice system, but also leave the real perpetrators at large and victims in limbo.

However, the recent Post Office scandal in the UK sounds a bell of caution that we can never think ourselves fully beyond such things. The pressure of an accusation and an unrelenting approach to investigations can lead to wrongful admissions, even in non-police investigative contexts.

One important development which has led to change in the context of investigative interviewing in recent years is an increased understanding of vulnerability in police custody. This ranges from inherent vulnerabilities associated with an individual’s own characteristics (for example, intellectual disabilities, mental ill-health, substance dependence, or neurodiversities) to situational vulnerability, brought about by the fact of being isolated in police detention and the conditions of custody.

Many garda stations are in very old buildings, and detention cells even in those which have been refurbished are unpleasant. They usually contain just a waterproof mattress and a floor-level toilet pan, with the flush mechanism located outside of the cell. Lighting is externally controlled and sounds from other cells, corridors or nearby offices can be heard at all hours.

Imagine sitting in a cell like this, isolated from everyone you know and trust, suspected, rightly or wrongly, of having committed a serious offence, uncertain of what will happen next, dependant on gardaí for basic needs. Many people would find this very distressing, and even the most robust character could find themselves feeling particularly vulnerable, and willing to say anything in order to be released.

Partly because of a greater scientific understanding of vulnerabilities in the interrogational context, the approach to investigative interviewing internationally has changed in recent years, and this is reflected in Irish policing. While police interviewers of the past, often untrained, were confession-focused and sometimes tunnel-visioned in relation to a particular suspect or scenario (as noted by the Morris Tribunal), the modern approach to interviewing, backed by science and experience, advocates for a more open-minded approach which is focused on information-gathering within a rapport-based interview dynamic.

Gardaí, particularly those trained to a highly specialised level, should take account of individual vulnerabilities and seek to establish rapport with interviewees and to obtain a free-flowing narrative, if possible. The atmosphere in the interview room should be non-coercive and non-judgmental. This is now recognised as the best way of getting information in investigative interviews and it aligns with the international Principles on Effective Interviewing for Investigations and Information-Gathering, which were published in 2021, and the related UN Manual on Investigative Interviewing for Criminal Investigations.

Safeguards to protect those arrested and detained for questioning have been enhanced over the past 40 years since a general power of detention for questioning post-arrest was first introduced in Ireland under section 4 of the Criminal Justice Act 1984. For example, a suspect can consult with a lawyer, and have that lawyer attend the garda interview. The former right is long recognised in Irish law but, until 11 years ago, a suspect had to enter the interview room alone, without their solicitor. While there is not as yet a specific legal “right” to have a lawyer with you, this is now allowed in practice, though take-up levels remain surprisingly low.

Suspects who are under 18, or those over 18 who have an intellectual disability, can have a responsible adult with them for support during garda interviews. This is an important but underused safeguard, and it is underdeveloped when compared with the approach to “appropriate adults” adopted in England and Wales.

If English is not their first language, suspects are also entitled to have an interpreter present during a garda interview. This is an important protection to ensure suspects fully understand questions they are being asked, and that their answers are accurately recorded.

However, there is no specific accreditation or regulation of interpreters working in Ireland besides Irish Sign Language interpreters. This gives rise to concerns around quality, not only in terms of detailed knowledge of the languages in need of interpretation, but also in relation to the very specific skills and competencies of professional interpreters. Incorrect interpretation at the early, investigative stage of the criminal process can have far-reaching consequences and greater oversight is needed.

Garda interviews with detained suspects are audio-visually recorded. This is important, and is not the case in all jurisdictions. A somewhat strange situation persists in the Irish context, however, such that, despite the electronic recording of the interview, one of the garda members present must make a contemporaneous note of the questions asked and answers given.

The hand-written note is later typed up and becomes the “memorandum of interview” which is placed on any file that might be sent to the Office of the Director of Public Prosecutions (the DPP) for consideration. A transcript of the interview is not automatically created. This process slows the pace of interviews considerably, creates a serious risk of inaccuracy, and is really in need of change.

A lot has changed in terms of police custody and questioning in Ireland since the power of detention under Section 4 was introduced over 40 years ago. But improvements can still be made in the further rollout of garda interview training, greater supports for suspects, regulation of interpreters, and oversight of detention. We will never be able to fully mitigate the risk of false confessions and miscarriages of justice, but we must continue to create a system which minimises such risk as much as possible.

• Yvonne Daly is professor of criminal law and evidence at the School of Law and Government, DCU. She is the editor of Police Custody in Ireland and co-author of Criminal Defence Representation at Garda Stations. This article first appeared in RTÉ Brainstorm.