Promising practices on audio-visual recording Promising practice from Ireland Description of the practice In Ireland the Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations, 1997 provide for interviews of persons arrested for serious offences and detained under specific legislation to be electronically recorded, or recorded in writing where electronic recording is not practicable. However, in practice, all interviews (of those detained and those voluntarily there or arrested under other legislation) are electronically recorded by AVR as well as recorded in writing, which slows down the interview process considerably. VHS tapes were originally used however now DVDs are used. There are provisions in the Regulations relating to the security of the tapes – the sealed master tape is given to the Member in Charge who makes a note of this in the detained person’s custody record45 – and the destruction of the tapes.46 Six months from the date of the interview, a suspected person may apply for the tapes to be destroyed.47 The tapes will be destroyed if proceedings have not been instituted (not if the suspected person has absconded) or the suspected person has been acquitted or discharged or the proceedings were discontinued. The suspected person, their legal representative or a person authorised to act on their behalf is entitled on request to witness their destruction. However, if there are civil proceedings ongoing and if a party serves notice to the police that the tape may be required, the tape will not be destroyed until six months from the conclusion of the proceedings or until the conclusion of any proceedings on appeal.48 footing. Once in primary legislation, evidence gathered in an interview that was not electronically recorded will be illegally obtained. Illegally obtained evidence can still be admitted at trail at the discretion of the trial judge based on an assessment of the totality of the circumstances. However, it is possible that interviews carried out without AVR will impact a suspected person’s constitutional rights, namely the right to a fair trial. In circumstances where evidence is found to be unconstitutionally obtained it will be excluded, but only if it was obtained by way of a “deliberate and conscious” violation of constitutional rights.54 Thus the exclusionary rule in Ireland in practice is quite weak and subject to an “inadvertence exception”.55 The current draft legislation makes AVR a legal obligation excluding situations where the recording equipment or a recording medium is not available for use or fails to work at the commencement of an interview or through the course of the interview. In those cases the interviews will be recorded in writing. The cost in EURO of AVR for the police for the past seven years was obtained via a freedom of information request. In terms of the exclusion of evidence, currently, if the regulations (as secondary legislation) are not complied with that does not render the evidence in itself inadmissible49 leaving the court the discretion to disallow any admissions made in the course of the interview. A court will look at the circumstances of the case and determine cumulatively if they affect the admissibility of the statement.50 However, if the overall fairness of the case dictates, the court will have discretion not to forgive a breach of the regulations.51 The trial judge will decide on the impact of the breach of the regulations and whether the accused had been prejudiced.52 However, current draft legislation53 will put AVR on a statutory 45. Electronic Recording of Interview Regulations, 1997, regulation 13. 46. Electronic Recording of Interview Regulations, 1997, regulation 14. 47. ibid. 48. Electronic Recording of Interview Regulations, 1997, regulation 14(4). 49. Criminal Justice Act 1984, section 7(3) generally and section 27(4) specifically on AVRs which holds “Any failure to comply with a provision of the regulations shall not by itself render a person liable to civil or criminal proceedings, and (without prejudice to the power of the court to exclude evidence at its discretion) shall not by itself render inadmissible in evidence anything said during such questioning.” 50. See also for example, The People (DPP) v P. A. unreported [2008] IECCA 21, where a claim that the regulations were breached were dismissed as the cumulative effect of the circumstances relied on did not have the effect of rendering the statement inadmissible. 51. See for example, The People (DPP) v Christopher Crowe unreported [2015] IECA 9, § 67. 52. DPP v Diver [2005] 3 IR 270. 53. An Garda Síochana (Powers) Bill 2021, <http://www.justice.ie/en/JELR/Gen_Scheme_of_AGS_(Powers)_Bill.pdf/Files/Gen_Scheme_of_AGS_ 16 (Powers)_Bill.pdf> . 54. See DPP v JC [2015] IESC 31. 55. For example, in a recent case before the Special Criminal Court evidence was deemed admissible despite it being gathered unconstitutionally, see <https://www.independent.ie/irish-news/crime/regency-trial-illegally-taped-gerry-hutch-conversations-can-be-used-in-evidence-in-the-interest-ofjustice-42190897.html>. 17