transmission and recording.”87 This practical problem would be overcome by cloud-based solution. This would enable police to upload AVRs of interviews directly to the cloud instead of relying on DVDs. However, the use of cloud-based software would require stringent adherence to the collection and storage provisions of the EU Law Enforcement Directive (LED) in circumstances where the provider might be an external body. Article 28 of the LED requires personal data gathered in a police interview to be processed in a manner that ensures an appropriate level of security and confidentiality. There exists a tension between data protection concerns and requirements and the need for police to keep recordings in case of future proceedings. Challenge 4. Defence access to tapes The 1997 Regulations provided that a copy of the tape could be provided to the interviewee or their legal representative via a request in writing.88 However, following allegations that these tapes were being played in pubs as a source of entertainment,89 and that gangland leaders were requesting the tapes from suspected persons to review them to see if they divulged any sensitive information on the gang,90 legislation in 2007 provided that a person could only obtain access to the tape if they were charged with an offence, brought before court, and the court directed that a person or their legal representative could have a copy.91 The court can specify conditions attached to the granting of the tape to the defence.92 If the suspected person is not “charged with an offence”,93 neither they nor their lawyer can receive a copy of the tape. This is a challenge for defence lawyers who must now make a formal cumbersome legal application in court for a tape. It is challenging if their client is not charged as they may want to review tapes for other proceedings but have no way to access them. While issues of gangland intimidation are still an issue, a better balance could be struck between Ireland’s narrow system of furnishing copies and Croatia’s system of automatic furnishing as explored below in section 4.2.1. Challenge 5. Camera perspective bias The main camera of the recording equipment is pointing towards the face of the interviewee, whose chair is usually located in the centre of the room. Depending on the camera angle, it is sometimes possible to see part of the lawyer in the frame of the video recording, however not always, as the focus is on the interviewee. Research shows that whoever is in shot appears more guilty and this issue is at play in Ireland given the police have their backs to the camera.94 Challenge 6. Transcription Police officers write contemporaneous notes during the interview in addition to the AVR and sometimes there are discrepancies. It was highlighted in this project’s consultations with a defence lawyer that it can be time consuming to review the video and contrast it with the provided notes. However, it was acknowledged that this also highlights the importance of the availability of an AVR. Irish gardaí have noted that “at the moment the notes mean we are using an antiquated system.”95 Similarly, academics highlighted how: “It is very difficult for Gardaí to get into any flow of questions and answers within the interview because of this, and interviews are likely to be much more effective if the requirement for a contemporaneous note was removed. This also has the effect of substantially lengthening the time an interview takes which means both that the suspect is detained for longer, and that garda time is unnecessarily consumed.”96 This is an issue, which the AVR Steering Committee also examined in 2004. However, they highlighted different arguments in favour of keeping the practice 87. AVR Committee Report 2004, p.12. 88. Electronic Recording of Interview Regulations, 1997, regulation 16. 89. Tony Purcell, ‘Crime lords see garda interview videos’, Irish Examiner, 26 November 2003. 90. Tom Brady “Crime suspects can no longer demand tapes of interviews” Irish Times, 15 February 2007. 91.Criminal Justice Act 2007, section 56. 92. ibid, section 56(1) “only if the court so directs and subject to such conditions (if any) as the court may specify”. 93. ibid. 94. See for example Landström, et al, ‘The camera perspective bias: A case study’, 4(3):199 – 208, October 2007, Journal of Investigative Psychology and Offender Profiling. 95. Michelle Hennessy, ‘Gardai recording interviews still have to take written notes, and they say it’s hurting their work’, the Journal.ie, 29 April 2014. 96. Yvonne Daly and Vicky Conway, ‘Regulation of detention in Garda custody, Submission to Law Reform Commission for Fifth Programme of Law Reform’, 2019, p. 6, <https://www.dcu.ie/sites/default/files/lawcentre/pdfs/daly_conway_lrc_submission.pdf>. 22 of contemporaneous note-taking in recorded interviews, such as the transcription cost and need for the transcript to be checked and certified.97 It is not clear whether these arguments in favour of contemporaneous note-taking are as valid in 2021 given technological developments. However, current draft legislation will solve this issue requiring only a written note if the equipment is not available or fails at the beginning of or during an interview.98 It is unclear from the draft legislation whether automatic transcription is foreseen. Challenge 7. Oversight One professional who was consulted highlighted the concern that not all recordings are watched and that some police may feel comfortable that it is not going to be reviewed. They recommended that “if we’re going to rely on AVRs, we should conduct dip sampling on it and randomly assess the recordings.”99 AVRs could also be used for training. Challenge 8. Unavailability of equipment As noted above, interviews do not have to be recorded if it is not “practicable” or if the equipment is not available or is already in use. While it is a rare occurrence in practice, it is recommended that simple resourcing issues do not hinder AVR and that all garda stations are not only equipped with the proper equipment, but also with enough equipment to facilitate more than one interview at the same time. The current draft legislation could be strengthened by removing the exception for when equipment is unavailable.100 Challenge 9. What happens before and after camera switched on As noted above, another important safeguard which AVR can protect is the right to information. However, in Ireland the Notice of Rights is given to suspected or accused persons before they enter the interview room and this process is not recorded audio-visually. There remain concerns about other interactions between police and suspected or accused persons in the lead up to the interview itself, which are not recorded. Challenge 10. Children who are suspected or accused of crime Jurisdictions with best practices focusing on children such as Belgium, France, and Estonia provide for AVRs of interviews of children, even when a lawyer is present. Currently the regulations are silent on children in conflict with the law. Children are especially vulnerable to coercive police questioning. In Ireland children are subject to the same general legislative powers of detention and questioning as adults, dependant on the legislation under which they are detained.101 Even when a juvenile’s interview is recorded, there is a risk of a false confession. High profile cases in other jurisdictions highlight the need for additional safeguards for children even when AVR is in place.102 Some Irish police are given specialised training to interview child who are suspected or accused persons (or victims or witnesses). However, in 2020 only 22 police officers were given this training.103 The legislation ought to be amended to state that none of the usual derogations can apply when the person to be questioned is a child. The interplay of all procedural rights comes into sharp focus with children in conflict with the law, the right to have a lawyer is of particular importance for a child suspect. 97. AVR Committee Report 2004, p.11. 98. General Scheme of the Garda Síochána (Powers) Bill 2021, Head 60(2) (this is draft legislation), <https://www.justice.ie/en/JELR/Gen_Scheme_of_AGS_(Powers)_Bill.pdf/Files/Gen_Scheme_of_AGS_(Powers)_Bill.pdf>. 99. ProRPC project consultations. 100. General Scheme of the Garda Síochána (Powers) Bill 2021, Head 60(2) (this is draft legislation), <https://www.justice.ie/en/JELR/Gen_Scheme_of_AGS_(Powers)_Bill.pdf/Files/Gen_Scheme_of_AGS_(Powers)_Bill.pdf>. 101. Children are entitled to have a parent, guardian or other adult present during interview. The Children Act 2001, section 61(1). See Part 6 of the Act generally headed “Treatment of Child Suspects in Garda Síochána Stations” which contains specific provisions relating to the detention of juveniles in Garda Stations. 102. See in the United States Dassey v. Dittmann, United States Dist. E. Dist. Wisconsin (No. 14-CV-1310) (12 Aug., 2016) which referred to numerous sources describing how easily false confessions may be obtained from innocent vulnerable children suspected of crime and how children’s confessions in the absence of adult and legal assistance are highly unreliable. 103. Parliamentary Question 447, <https://justice.ie/en/JELR/Pages/PQ-30-11-2021-477>. 23