Provision was made for the routine taping of Garda interviews with suspects in the 1984 Criminal Justice Act. In 1990, the Martin Committee recommended routine taping, but only in 1997 were the necessary regulations passed.
Even then, recording of interviews was carried out on a pilot basis in only four Garda stations. This scheme should have gone nation-wide much earlier.
A high proportion of criminal convictions are based upon evidence obtained through police confessions so it is essential to ensure that these confessions are made voluntarily.
Of all the stages of the criminal process, the accused is at their most vulnerable when being interrogated by the police. Criminologist Dr Paul O'Mahony states that, when incarcerated in a police cell, "many people, whether especially susceptible or not, can be brought to a point where they will make false admissions of guilt".
He suggests that even subtle psychological processes can be insidious in persuading innocent persons of their own guilt. Indeed, forms of duress in questioning may include the use of inducements such as the offer of bail, immediate release from custody or the visit of a doctor. These can be more powerfully persuasive to the vulnerable accused than physical oppression or threat.
It is undisputed that police methods can involve overt duress. We are all familiar with the notorious miscarriages of justice in the English courts which involved false or fabricated confessions, such as the Birmingham Six and Guildford Four cases. Since then, it has become standard practice in England for police interviews with suspects to be recorded audio-visually.
Copies of the tape are made available to the accused and their legal team, while the original is available as evidence in court. This practice does seem to have contributed effectively to the fairness and the efficiency of the English criminal process.
Miscarriages of justice in this State should have encouraged the introduction of electronic recording here years ago. Perhaps the most glaring instance was the 1980s Kerry babies case in which a whole family falsely admitted involvement in the murder and disposal of a baby.
There have been many other cases involving disputed confessions since then. Most recently the Special Criminal Court criticised Garda interrogation methods in the case of Paul Ward, convicted of the murder of journalist Veronica Guerin in November 1998.
Irregularities were found to have occurred during Ward's detention in Garda custody. One team of investigators was not aware of an apparent breakthrough in questioning the previous night; the presence of a red mark on the accused's neck was unexplained by the prosecution; the visit of Ward's elderly mother to the station was held to be "a cynical ploy which it was hoped might break down the accused and cause him to make what was perceived to be a crucial admission".
Ultimately, the court held that the conduct of gardai during Ward's interrogation amounted to a deliberate denial of fundamental fairness and concluded that all the admissions allegedly made during his detention in Lucan Garda station should be excluded. Ward was convicted, however, on the evidence of an accomplice.
Ward's case was not heard before a jury but the general rule is that issues relating to the admissibility of confession evidence have to be argued before the judge in the absence of the jury. Many of these issues could be more easily resolved if an audio-visual recording of the interview was available to both prosecution and defence in advance of the trial.
However, it should be noted that the recording of interviews will not do away altogether with the need for these "trials within a trial". Some issues will still have to be fought out before the judge, particularly when it is disputed that the tape constitutes a continuous and complete record of the interview.
The 1997 regulations allow the recording to be interrupted when a break is being taken or where a tape needs to be replaced. Issues may arise as to what was said during those interruptions in the tape.
Further, the tape cannot record what happens on the way to the station in the Garda car; or in the corridor outside the interview room. If inducements are offered or threats made to the accused in these unregulated spaces a "trial within a trial" may still be held.
Electronic recording will not serve to resolve every issue which arises during Garda interrogation but the introduction of this scheme represents an important step to ensuring that any confessions tendered in evidence by the prosecution in a criminal trial have been obtained in a fair and just manner.
Ivana Bacik, barrister, is Reid professor of criminal law and criminology at Trinity College Dublin