Promising practices from other EU Member States Promising practice from Croatia In Croatia, AVR applies to all interviews, regardless of the age of the suspected or accused person.104 However it doesn’t apply for low-level offences.105 Given that the majority of criminal offences are of a less serious nature, this is problematic. However, the Croatian model is stronger than Ireland in numerous respects. First, in terms of the penalties involved if no audio-visually record is made. Since the provisions for AVR in Croatia were established by law, any evidence gathered informally outside of the recording is unlawful and the same goes if the police fail to AVR the questioning. This automatic exclusion of evidence is important and as Ireland’s system is governed under regulations not law, it is much weaker in this respect. In the Croatian system “At the request of the questioned person, the recording can be played immediately after questioning. Corrections, nuances or explanations can be made and recorded. A copy of the recording – free of charge – is provided to the suspected person or the defence lawyer after completion of interview.”106 This automatic replay of the interview is helpful, and the immediate corrections can help in avoiding contention and confusion down the line. The automatic copy provided immediately is also very welcome as the bureaucratic channels which suspected or accused persons have to go through, sometimes without help from their lawyer, to obtain their own videos in Ireland can be a barrier. The procedure in Ireland is that a suspected person’s lawyer must make an application before a court for the disclosure of the tape.107 The implementation of the Directive on access to a lawyer in 2013 in Croatia which spurred the reform in this area highlights clearly the need for Ireland to opt into this Directive. Promising practice from France Adequately implemented, AVR can bring a positive change in the attitude of the different parties involved in interviews. Key takeaways Gradual steps toward widespread AVR. While AVR is best practice, AR without video would be an important step forward for jurisdictions with no recording in place whatsoever.110 AVR is no a stand-alone safeguard against coercion and abuse. AVR needs to be incorporated into a broader package of other procedural safeguards. If not, there is a danger that it will take precedence over other fair trial rights, such as the right of access to a lawyer. In Doyle v. Ireland,111 the European Court of Human Rights did not find a violation of the right to a fair trial, because, in its view, AVR of the police interview fulfilled the same purpose as a lawyer present with regard to preventing coercion and ill-treatment by the police.112 This suggests that AVR of a police interview is an equivalent safeguard to the presence of a lawyer, which puts this fundamental protection at risk.113 This is a slippery slope towards the conclusion that where there is AVR, the presence of a lawyer is not necessary and vice versa. But AVR and the right of access to a lawyer serve different purposes. The first is one type of safeguard against ill-treatment and allows for ex post facto verification that procedural rights have been respected. Having a lawyer present prevents police abuse and coercion but also guarantees the respect of all other procedural rights such as the right to silence. AVR cannot replace the right of access to a lawyer without putting all fundamental rights at risk. AVR should therefore come as part of a wider set of reforms, to ensure, among other, that: • It supports a movement away from questionings focused on confessions to qualitative interviewing – meaning interviews aimed at understanding the suspected person’s viewpoint, perspective, and the context instead of advancing a police theory on an issue. • Lawyers can use the recordings to ensure that their clients’ rights are implemented • Courts also engage and take the time needed to review recordings where there are disputes as to what happened during a questioning. • Courts provide for an effective remedy such as exclusion of evidence when coercion or illtreatment occurred during or outside police questionings. In France, it was observed that with AVR police officers and judges adopt a more respectful attitude towards the suspected person and the lawyer.108 Lawyers are also more careful knowing that “off the record” comments that are not usually reported in the written minutes will be recorded. Overall, it has a pacifying effect on the parties, as recordings puts an end to disputes in relation to statements made.109 104. Human Rights House Zagreb, PROCAM, country report Croatia, p.21, available at: https://www.fairtrials.org/articles/publications/croatia-procedural-rights-observed-by-the-camera/. 105. Low-level offences are covered by another law which does not provide for AVR. Croatia recognizes two main forms of unlawful conduct: criminal acts (“kazneno djelo”) and misdemeanors (“prekršaj”). Misdemeanor refers to a less severe violation of the social values and carries with it lighter sanctions 106. Human Rights House Zagreb, PROCAM, country report Croatia, p.14, https://www.fairtrials.org/articles/publications/croatia-procedural-rights-observed-by-the-camera/ 107. See above in section 4.1.4, Challenge 4. 108. Fair Trials, PROCAM, Country report France, p.25, https://www.fairtrials.org/articles/publications/france-procedural-rights-observed-by-the-camera/. 109. Ibid. 24 110. Principles on Effective Interviewing for Investigations and Information Gathering, May 2021, § 176 <https://interviewingprinciples.com>. 111. ECtHR, Doyle v Ireland, App No 51979/17, 23 May 2019, § 112. ibid. 113. See the dissenting Judge in the Irish Supreme Court’s judgment DPP v Barry Doyle 2017 IESC 1, § 178 where Judge McKechnie strongly makes the point that an AVR is not a substitute for having a lawyer present, “I do not believe that the present safeguards sufficiently address the inequality which now exists in the interview room and which can so threaten the rights being presently discussed. For certain there are other protective measures in place in this jurisdiction which differentiate the present Irish context from, say, the prevailing position in the United States pre-Miranda; I am referring, primarily, to the requirement of audio and video recording of interrogations, and the resulting judicial scrutiny and oversight of the conduct of questioning garda, even if such conduct is rarely - if ever - reviewed at a regulatory level. Even so, I am not convinced that this ex post facto supervision is an adequate surrogate for the presence of a solicitor at the interview itself.” 25