Right to Silence. The privilege against right to silence and self-incrimination go hand in hand. They are also very closely related to the presumption of innocence. As the responsibility is placed on the prosecution to prove the guilt of a person it follo

Right to Silence: Criminal Law

The privilege against right to silence and self-incrimination go hand in hand. They are also very closely related to the presumption of innocence. As the responsibility is placed on the prosecution to prove the guilt of a person it follows that the accused should not be forced to assist the prosecution by being forced to speak.

First of all I will look at the right to silence at the pre-trial stage that is while a crime is being investigated, but before a person has been charged with that crime. However at common law, it was clear that suspects enjoyed a right to refuse to answer police questions. Whereas recent legislation has increasingly tended to require answers to be given in specific circumstances, or allow the court to draw an adverse inference from the failure to give answers.

However it is important to note that, where no such legislation has been enacted, then the right to silence remains available. An example of this can be seen in People (DPP) v Finnerty. Where the defendant was accused of rape and put forward an alternative account of the events on the night in question. In response the prosecution sought to put it to the defendant that he had not given any such account when arrested and questioned. The trial judge allowed the prosecution to question the defendant on his silence when arrested and the defendant was therefore convicted. However on appeal, the Court of Criminal Appeal upheld this decision, Stating that it didn’t impinge on the defendants right to silence, in as much as it was limited to the credibility of the defendants account of events and was not in itself evidence of guilt.

Moving to the trial of right to silence itself, it is clear to see that there is a constitutional right of an accused person, arising from the Article 38.1, to refuse to testify. However if an accused person does choose to testify, he then waives that right. He must answer questions put to him or her by the prosecution, they cannot define to do on the basis that the answers would incriminate him; Criminal Justice (Evidence) Act 1924, section 1 (e).

As you can see that legislation may validly require a person to answer questions connected with a criminal investigation. However fact is that a person may be compelled to answer does not necessarily mean that any information which they give can be used in evidence against them at trial, and the questions must be asked as to whether the privilege against self-incrimination will prevent such use.

This issue came in the Supreme Court in Re National Irish Bank. This case concerned section 10 of the Companies Act 1990, which imposed an obligation on company officers and agents to co-operate with inspectors investigating a company.

In Heaney v Ireland, the Supreme Court ruled that the right to silence is a constitutional right protected by Article 40.6 of the Constitution as a corollary to the right of free expression. However the Supreme Court also stated that the Constitutional right to silence only implied to anything that might offer the police evidence, which was self-incriminating. In other words the Constitutional right to silence could not extend to not answering police questions that would not involve self-incrimination such as providing your name and address when asked or providing your date of birth or nationality when asked as this information would not normally be self-incriminating.

The European Court of Human Rights in Quinn v Ireland, while acknowledging that the right to silence and the right not to incriminate oneself as laid out in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was not an absolute right, it felt that section 52 went further than was necessary to meet the needs of the state. However, it seems from more recent decisions of the courts in Ireland that once any such evidence relating to a failure or refusal under section 52 is not used in the prosecution case against ...

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Inferences can be drawn in certain circumstances; Under the Criminal Justice Act 1984 as amended by Part 4 of the Criminal Justice Act 2007, inferences can be drawn from your silence in certain circumstances in any proceedings against you for an arrestable offence. An arrestable offence is an offence for which a person can be imprisoned for 5 years or more.

Inferences can be drawn, at any time before being charged or when you are charged, or when informed by a Garda that you may be prosecuted for the offence, you fail or refuse to account for any object, substance or mark on your person, clothing or in your possession or in any place in which you were when questioned by a Garda. Also inferences can be drawn if you fail or refuse to account for your presence at a particular place around the time the offence was committed.

“While Legislation may validly restrict the pre-trial right to silence, it may not limit the privilege against self-incrimination.” This principle has been applied in Dunnes Stores v Ryan. Under section 19 of the Companies Act 1990, an authorised officer could compel persons to make statements in respect of the affairs of a company. In the High Court, the judge held that there was no evidence of complaint by the members of the company. The decision to appoint an authorised officer was unreasonable, irrational and was therefore ultravires. This was applied to the Supreme Court and it was held that the public interest in good company governments could not be questioned. The parties enjoined the benefit of co-operation but they must also accept the duties and obligations.

Likewise in Heaney v Ireland, a similar conclusion drawn by the Supreme Court in Rock v Ireland, where the suspect was arrested in possession of forged US dollars. His failure to answer questions regarding his possession of these items led to inferences being drawn against him under sub section 18 and 19 of the Criminal Justice Act. However the Supreme Court concluded that these provisions had not breached the suspects right to silence, because between the rights of the accused and the interest of the public were at large.

Article 38.1 of the Constitution requires that no person should be tried in relation to an alleged offence except “in due course of Law.” Also a person cannot be charged with a crime unless that crime is one recognised in law. In particular it is necessary that the charges against a person relate to a specific activity that is expressly deemed in Law to be illegal.

“As with the privilege against self-incrimination, the common law recognised it as a right against double jeopardy. Thus in bar of a trial on indictment one could plead in appropriate circumstances a prior acquittal or conviction, of the offence changed; a similar rule applied in regard to summary prosecutions.”

“The privilege against self-incrimination, which provides for a right to silence and a right not to incriminate oneself, lies at the heart of a fair criminal procedure and underlies the legal principle that a person is innocent until proven guilty.”

The right to silence and privilege against self-incrimination in Ireland is not an absolute right. However, in the vast majority of criminal offences this right does apply. When you are accused of a criminal offence you enjoy the right to silence unless you are informed by the Gardaí that the particular offence for which you are arrested places a certain obligation on you. The Gardaí must also inform you of the consequences if you fail to comply.

There is also a Constitutional guarantee, that every person accused of a criminal offence in Ireland is innocent until proven guilty. When you are charged by the Gardaí with a criminal offence, the responsibility of proving your guilt lies with the prosecution. Therefore, no responsibility lies with you, the accused, to prove your innocence. However there are two exceptions to this principle;

For example if you are charged with possession of drugs and the prosecution proved that you actually had the drugs. It is then a legal requirement for you to prove that you did not know that they were drugs. Otherwise you will be convicted.
Also if you offer a defence of insanity. It is then up to you to prove your insanity and this proof do not rest with the prosecution.

There is also a case of Saunders v UK, where the European Court held that the use of investigative powers under the British Companies Act, which was broadly similar to the Irish powers, and were necessary to allow public authorities investigate fraud. The European Court held that the use of self-incriminating statements in the subsequent prosecution of the Applicant violated the right to a fair trial as guaranteed by Article 6 of the Convection.

You’re right to silence if you are in Garda custody!

If you are arrested and brought to a Garda station, there is an obligation on the arresting Garda to inform you of your general right to remain silent during questioning. This is done by way of a caution. The caution states “You are not obliged to say anything unless you wish to do so but anything you say may be taken down in writing and may be used in evidence”. This is a clear indication of the right to silence enjoyed in most cases by an arrested person in Garda custody.

It is not an offence to fail or refuse to answer questions. However, the court or jury can take into consideration, when deciding on your guilt or innocence, the fact that you had failed or refused to answer the questions when asked by the Gardaí. If there is no other evidence put to the court or jury then they cannot convict you on the failure or refusal to answer questions alone. It can only be used to strengthen other evidence presented to the court or jury in the case. It also cannot be used unless the Garda informed you in ordinary, clear, understandable, language what the effect of a failure or refusal might be and you were given a reasonable opportunity to consult a solicitor. The questioning must be recorded electronically or you must consent in writing to it not being recorded.

Similarly, under the Criminal Justice Act 2006, as amended by the Criminal Justice (Amendment) Act 2009, inferences may be drawn as the result of the failure, in particular circumstances, to answer questions. This applies to the organised crime offences under Part 7 of the Act.

The European Court of Human Rights in John Murray v United Kingdom has considered the issue of adverse inferences and whether or not this is compatible with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which guarantees the individual a right to a fair trial. The Court ruled that it would be incompatible with the right to silence if a conviction were based solely on the accused’s failure or refusal to answer police questions. It did, however accept the legality of taking an accused’s failure or refusal to answer questions into account in considering the weight or persuasiveness of the prosecution evidence. The Court also said that a number of factors would have to be considered in deciding whether or not adverse inferences were in line with the European convention for the Protection of Human Rights and Fundamental Freedoms. Here are some of the following;

Whether or not the appropriate warnings had been given to the accused as to the effect of remaining silent,
Whether the accused understood such warnings,
Whether or not the accused had access to legal advice,

The fairness and reasonableness of the inference which were actually drawn by the court, or
Offence of not answering questions.

The second area that impinges on privilege against self-incrimination and the right to silence is that which makes it an offence if you fail to answer certain questions or to provide certain information. The most important piece of criminal law in Ireland in this regard is the Offences against the State Act 1939. The greatest powers given to the Gardaí are in this piece of law. The provisions contained in the Act in question apply whether or not an accused person was in Garda custody at the time the questions were asked. However, it is of most relevance when a person is in Garda custody.

Section 52 of the Offences against the State Act 1939 obliges you if detained under Section 30 of the Act to answer certain questions concerning your movements and actions and your knowledge concerning the commission of any offence under the Act. Before requesting this information, the Garda must inform you that the request is being made under section 52 of the Act. You must then be informed of the consequences of a failure or refusal to comply with the request, that is, you are committing an offence. The Garda must explain this in clear, ordinary and understandable language.

In O’Leary v Attorney General, the plaintiff challenged the constitutionality of two sections of the offences Against the State Act 1939, which provided that the possession of an “incriminating document,” would be evidence of a membership of an unlawful organisation as it would be the belief of a chief superintendent to this effect. The plaintiff claimed that the effect of these sections was to reverse the presumption of innocence, requiring him to prove that he was a member of an unlawful organisation. The Supreme Court rejected this argument, however, holding that these sections provide for evidence of membership, but not proof of membership.

As we have seen, the legislation aimed to limit the instances in which a defendant could remain silent in the face of police questioning by ensuring that this would be brought to the attention of the court. There were good reasons for this; a guilty person should not be able to hide behind silence to avoid the consequences of his actions and an innocent person should speak out so that he can be eliminated from the police enquiry so that the true offender can be found. It is in the interests of society that the police must have sufficient powers to investigate offences and the law should reflect this by ensuring that all persons must cooperate fully by answering questions put to them by the police. There is so much to favour this position that this is surely an instance in which the rights of the suspect should be trumped by the interests of society.

Bibliography

Conor Hanley, An Introduction to Criminal Law ( Gill & Macmillan, 2nd Ed, Dublin, 2006 )

Cecilia Ni Choileain, Criminal Law ( Round Hall Nutshells, Dublin, 2006 )

Fergus W. Ryan, Constitutional Law ( Round Hall Nutshells, 2nd Ed, Dublin, 2008 )

T.J McIntyre and Sinead McMullan, Criminal Law ( Thomson Round Hall, 2nd Ed, Dublin, 2005 )

Peter Charleton, P. McDermott and M. Bolger, Criminal Law ( Butterworths Ireland Ltd, Dublin, 1999 )

James Casey, Constitutional Law in Ireland ( Sweet & Maxwell, 2nd Ed, London, 1992 )

Other Sources:

People (DPP) v Finnerty [1999] 4 I.R. 364

Re National Irish Bank [1999] 1 I.L.R.M 321

Heaney v Ireland [1994] 3 I.R 593

Quinn v Ireland [2001] 33 E.H.R.R 264

T.J Mclntyre and Sinead McMullan, Criminal Law (Thomson Round Hall, 2nd Ed, Dublin, 2005)

Dunnes Stores v Ryan [2002] 2 I.R 60

Heaney v Ireland [1994] 3 I.R 593

Rock v Ireland [1997] 3 I.R 484

James Casey, Constitutional Law in Ireland (Sweet & Maxwell, 2nd Ed, London, 1992)

Saunders v Ireland [1996] 23 E.H.R.R 313

John Murray v United Kingdom [1996] 22 E.H.R.R 29

O’Leary v Attorney General [1993] 1 I.R 102

Right to Silence. The privilege against right to silence and self-incrimination go hand in hand. They are also very closely related to the presumption of innocence. As the responsibility is placed on the prosecution to prove the guilt of a person it follo

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