stations between 1994 and 1999. The initial pilot scheme in one station faced challenges, such as a “reluctance on the part of detainees to consent to being interviewed using electronic recording.”72 This resulted in a lack of statistical data for the pilot scheme. To address this, a full pilot scheme was developed and carried out in four Garda stations.73 However, take up rates continued to be low. The Steering Committee requested the Minister of Justice to introduce regulations for mandatory electronic recording.74 In 1997, the Electronic Recording of Interview Regulations were introduced, which provided for the recording of most police/detainee interviews.75 The regulations apply to all stations where recording equipment has been provided and installed. They also set out different safeguards in relation to the practice of the recording, discussed further below.76 Following the introduction of the regulations, the rate of electronic recording of interviews “increased dramatically.”77 The Steering Committee in its second report in 1999 strongly recommended that a nationwide scheme of AVR should be introduced, based on the experience of the pilot scheme. The Government accepted its recommendations and authorised a nationwide scheme in 1999.78 In order to roll out a nationwide scheme, different measures had to be taken, including the procurement and installation of necessary equipment, changes to the layout and soundproofing of interview rooms to ensure that the recordings were of a good quality, and the training of police on the practice of AVR. The 2004 final report of the Steering Committee highlighted the different measures that had to be taken to roll out the system.79 Remaining challenges While AVR of interviews is commonplace in Ireland and best practice, some legal challenges persist. Challenge 1. Scope of the law While most interviews are recorded in practice, the regulations only apply to stations where the equipment has been provided and installed and where the person being interviewed has been detained under specific provisions (currently six pieces of legislation).80 Therefore the regulations do not apply if a person voluntarily attends a police station to give a statement, which is quite common in circumstances where being arrested goes on record. Interviews do not have to be recorded even under the relevant legislation if the Member in Charge certifies that the equipment is not working, or is not available due to being already in use or is otherwise not practicable and to delay the interview would hinder the course of justice.81 However, given strong judicial commentary over the years it is extremely rare in practice for the police not to electronically record an interview. In practice, the police simply take the suspected person to another station where AVR facilities are available. The more pressing issue is when suspected or accused persons are not deprived of their liberty. Challenge 2. Accessibility of information on AVR The regulations outline that the Member in Charge must inform, orally and in ordinary language, the person to be interviewed that the interview may be electronically recorded and that if it is, they are entitled to receive a notice as to what happens to the tapes of the interview.82 Further, this written notice includes information on the process of recording an interview. For example, the Member in Charge must give a specific caution to the person being interviewed and state certain details, including the name and rank of any garda members present, the date, time of commencement of the recording and the location of the station, and the name of the person being interviewed.83 However, this information is currently not available in plain English or in an easy read format. Pictures of the equipment would be useful for children and suspected or accused persons with Autism Spectrum Disorder (ASD) or an intellectual disability.84 Challenge 3. Storage and destruction of tapes/updates in technology The regulations regulate the process to be implemented if there is a break in the interview and the procedure is onerous.85 If a person is detained for the maximum 7 days and interviewed each day with numerous breaks, a huge number of tapes would be needed and subsequently stored.86 The AVR Steering Committee in 2004 highlighted that they were “conscious of the fact that recording technology is changing at rapid pace, particularly in the case of digital technology as applied to audio and video of audio and AVR on the criminal justice system as a whole and the extent to which the pilot scheme shows that an effective and economic basis can be found for a national scheme and a report on the outcome of such assessment. The Committee was chaired by a Judge and included police, defence and prosecution lawyers, Department of Justice representatives and a Professor of electronic engineering. 72. AVR Committee Report 2004, p. 2. 73. The Committee had recommended that the pilot scheme be carried out in two stages; (i) preliminary, optional, scheme confined to one police Station and subsequently through a full pilot scheme, in accordance with agreed terms of reference. In 1994 the scheme began in Tallaght but as it was based on the consent of detainees. Only 8-9% of detainees consented to being recorded. Accordingly, the Committee decided to proceed with a full pilot scheme in a total of four Garda stations. Take up rates remained low (13% on average by 1995). 74. Under section 27 of the Criminal Justice Act, 1984. 75. Vicky Conway and Yvonne Daly, ‘From Legal Advice to Legal Assistance: Recognising the Changing Role of the Solicitor in the Garda Station’, 2019, 3 IJSJ. 76. The regulations were subsequently amended in 2009 and 2010. 77. AVR Committee Report 2004, p.2. 78. ibid, p. vii. 79. They also found that 132 of the 167 Garda stations used for interviewing were equipped with the necessary equipment. See Steering Committee on Audio and Audio/Video Recording of Garda Questioning of Detained Persons, Third Report. 20 80. Electronic Recording of Interview Regulations, 1997, regulation 2. The relevant provisions are: Section 30 of the Act of the Offences Against the State Act, 1939; section 4 of the Criminal Justice Act, 1984; section 2 of the Criminal Justice (Drug Trafficking) Act, 1996; section 42 of the Criminal Justice Act 1999; section 50 of the Criminal Justice Act, 2007; and section 16 or 17 of the Criminal Procedure Act 2010. 81. Electronic Recording of Interview Regulations, 1997, regulation 4(3). 82. Electronic Recording of Interview Regulations, 1997, regulation 5. 83. ibid. 84. People with intellectual disabilities are over-represented in the Irish prison system, see Gulati, G., Murphy, V., Clarke, A., Delcellier, K., Meagher, D., Kennedy, H., & Dunne, C. P. (2018), ‘Intellectual disability in Irish prisoners: Systematic review of prevalence’, International Journal of Prisoner Health, 14(3), 188–196. 85. Where the interviewee is leaving the room or there is an issue with the tape or recording equipment – the interviewer should record that a break is to be taken, the reason for the break, the time, and switch off the equipment, remove the tapes, seal one of the tapes with a master tape label and give it an identification number, sign the tape and ask the interviewee to sign it. (Electronic Recording of Interview Regulations, 1997, regulations 7-10). Then before the interview recommences, the process begins again, from the unwrapping of tapes to the setting up of the equipment. If there is a break where the interviewer and interviewee are remaining in the room, the process is less complicated – the member records that a break is to be taken, the reason, the time, and switches off the equipment. Then before recommencing the interview, the interviewer sets the equipment to record, reminds the interviewee that they have been cautioned and records the time at which the interview recommenced (Regulation 10). At the end of the interview, the interviewer asks whether there is anything the interviewee wishes to say or clarify, reads back the notes and asks if the interviewee wishes to make any alterations or additions, records the time, switches off the equipment, removes the tapes, seals one of the tapes with a master tape label and gives it an identification number and signs it and asks the interviewee to sign it. If the interviewee refuses or is unable to sign the master tape label, the Member in Charge is called to the interview room and asked to sign it (Regulation 12(2). 86. In a 2003 parliamentary session, the Chairperson of the Committee on Public Accounts questioned why DVD technology had not been adopted and highlighted how in practice “If a person leaves the room, the tape is stopped and a new one put in… In some cases up to 80 tapes can be required.” However the issue persists with DVDs although not to the same extent. Committee of Public Accounts, Special Report No. 5 - Garda Interview Recording Systems, 26 June 2003, <https://www.oireachtas.ie/en/debates/debate/committee_of_public_accounts/2003-06-26/3/>. 21