Detention for Questioning II

Table of Contents

Fair Procedures and Voluntary Confession

There must be fundamental fairness in the procedures in the criminal investigation. The right to silence or privilege against self-incrimination means that a person is not generally obliged to answer a question that may be an admission of guilt of an offence.

Even in court procedures, a witness may usually refuse to answer a question on the basis that the answer may incriminate him. The accused may generally refuse to give evidence without adverse prosecution comments. Some exceptions are mentioned below.

A confession or statement must be voluntarily in order to be admissible. If it is made through fear of prejudice or hope of advantage, held out by a person in authority, it may be invalid. It must not be obtained by oppressive means. Questioning, and circumstance which holds out hope, cause or fear, or overpowers the person’s will may cause the statement not to be voluntary.

General Obligation to Account

The 2007 Act amends 1984 Act in relation to detention for questioning. It applies to all arrestable offences. It allows the court to draw inference from the failure to mention facts that are later relied on in defence. This applies to any arrestable offence.

Persons may be obliged to account for certain objects substances and marks found on them or in their possession or at place where they were arrested. They may be obliged to explain their presence at a particular location in certain circumstances. In this circumstance, the legislation allows inferences to be drawn by a judge or jury by reason of a failure to so accounts. In these cases, the failure to reply as required is itself an offence

The failure to account, explain ore respond can give rise to an adverse inference being drawn. The person must be cautioned as to the effect of refusing to answer and must be given a reasonable opportunity to consult with a solicitor. The inference can only be drawn where the interview was electronically recorded, (unless there is consent).

A person detained for an arrestable offence is obliged to give his name, address, and submit to a search. They may be photographed, fingerprinted, swabbed and samples may be taken. They must submit to the seizure for testing of anything in their possession.

Samples

Persons detained for questioning, must submit to samples being taken for forensic testing when requested to do so. Failure amounts to obstruction under the legislation.

Inference may be drawn from any failure to furnish samples. Obstruction or failure to cooperate is an offence. Consent is required for more invasive sampling and tests. The Gardai may retain the records unless person applies for destruction after 12 months.

There other special procedures in the context with legislation such as the Misuse of Drugs and Road Traffic legislation.

Although there are no special rules on identification parades, the courts are aware of the risk of miscarriage of justice in the case of mistaken identity. Where identification is an issue, the courts recommend that an ID parade should be conducted. Certain guidelines exist in respect of ID parades. An identification from an ID parade may be admitted as evidence. Certain warnings are required. The courts are sceptical in some cases of their value.

It is essential that the ID parade is conducted in a fair manner and in accordance with procedural rules. The person’s solicitor should participate to ensure fairness in the procedure. All the persons must be similar in age, height, appearance, et cetera. In the case of identification from photographs, fair procedures require that a series of photograph should be presented.

Where there are doubts about evidence of identity, the jury should be warned about the risks of convicting based on such evidence alone. Where the verdict depends substantially on ID, attention should be drawn to the fact that identification has, in number of cases, proved to be erroneous and that there is a possibility of mistakes. The possibility of honest mistake should be highlighted. The jury should be warned to be cautious before accepting evidence of identification as correct.

Custody Safeguards

The custody regulations provide certain safeguards for persons in custody for the purpose of questioning. Breach of the regulations does not mean that the custody is unlawful nor does it by itself, affects the admissibility of evidence.

A member of An Garda Síochána in charge at the state has responsibility for ensuring that the regulations are complied with. Custody records must be maintained. Printed information of the person’s rights must be provided as well as details of charges intended to be made.

There are provisions for

notification of the detention to family members.
about the way in which enquiries must be handled,
relating to foreign nationals,
juveniles,
conditions of detention,
conduct of interview,
searches.
fingerprints, photographs, swabs,
complaints made,
medical examinations, and steps taken as a consequence,
medical treatment,
visits to the detainee
communications,
meals supplied, and
time of release.

Records

Recordkeeping is required, including

details of directions extending detention,
details of time and circumstances in which suspect is informed of rights,
details of request for solicitor and actions taken

Certain other information must be noted and kept.

Detention must be videotaped where it is practicable, and the equipment is available. Legislation enables rather than obliges videotaped and the electronic recording of the interviews. The 2007 legislation provides for video or recording to be in evidence of interview. The transcript of the recording may be evidence.

Access to Solicitor

Under the custody regulations, detained persons must be notified orally and in writing of their entitlement to consult a solicitor and have a solicitor of their choice attend. If the solicitor cannot be contacted within a reasonable time or is unable or unwilling to attend, the person should be given an opportunity to nominate another solicitor.

Where an arrested person asks for a solicitor, the Gardai may not request a written statement until a reasonable time for the attendance of a solicitor has elapsed.

A solicitor is not necessarily entitled to be present at an interview held with the suspect. The solicitor is entitled to consult with the accused out of earshot of anyone else should this be required.

Questions arise as to whether a statement compelled is a voluntary statement such as to be admissible at a criminal trial. The position still remains that a statement given on foot of a compelled answer is in compliance with domestic law but is likely to be in breach of the European Convention on Human Rights.

2011 Act Legal Advice

No questioning of a person detained under the Criminal Justice Act 1984 is to take place until he or she has had access to legal advice in person or by telephone. There are two exceptions. The person may waive his right to consult a solicitor. Alternatively, the member in charge may authorized questioning on the grounds of delay would involve one of the listed circumstances above.

The detention clock may stop pending the solicitor making himself available for consultation. This is restricted to a maximum of three hours or up to six hours where the person in detention objects to suspension of questioning between midnight and 8:00 a.m.

Regulations may be made to reduce the period. Regulations may be made dealing with procedural matters concerning access to a solicitor by detained person. This provision applies also to Section 30 of the Offences against the State Act to the power of detention.

Special Obligations to Account

There are further special provisions that require a person to answer certain types of questions and account for certain matters. These arise in relation to certain offences under the Offences against the State Act, other terrorist crimes, drug trafficking and gangland type crimes.

There is special anti-terrorism legislation that was strengthened in 1998 permitting inferences to be drawn from the failure to mention facts later relied on by the defence, when being questioned by members of the Gardai. It is an offence to stay silent without reasonable excuse where a person has information that may be of material assistance for the Gardai.

The court may draw inference from failure to mention certain facts that are later relied on. Similar protections of those above, i.e., right to consult with a solicitor, apply. The person concerned must be cautioned and given notice of the right and an opportunity to consult a solicitor.

2011 Amendments

The Criminal Justice Act 2011 amends procedure and seeks to improve Garda investigative powers. It is designed to reduce delays associated with the investigation and prosecution of complex crime including so-called white-collar crimes.

The legislation also deals with certain processes giving effect to the entitlement under the Constitution and ECHR of a person in Garda custody to have access to legal advice and deals with the circumstances in which a person detained under the Criminal Justice Act 1984(standard detention for questioning provision) may be questioned during night-time hours.

Relevant offences for the purpose of the legislation are offences punishable by imprisonment for a period of five years or more. This also extends to offences of abetting counselling procuring, conspiring and incitement to commit such offences.

The Minister may specify certain offences as relevant offences for this purpose. They include offences relating to banking law, money laundering, investment of funds, financial activities, company law, finance, terrorism, theft and fraud, bribery and corruption, competition and consumer protection, communication networks, raising and collection of taxes.

The Minister must consider that the powers in the Act by reason of the nature of the offence, concerned and the prolonged period that it may be required for investigation as a result of complexities of such investigations, are necessary for the purpose of the offence. The Minister must consult with other Ministers before so doing.

Suspension of Detention

The Criminal Justice Act 1984 is amended to allow the period of detention to be suspended and persons released during the period of suspension. This is to allow Gardai to follow up on information obtained during questioning.

The Gardai may suspend detention of a person being detained in relation to a relevant offence, where there are reasonable grounds for believing that it is necessary for the purpose of permitting enquiries or investigations to be made for the further and proper investigation of the offence for which the person is detained.

Where detention is suspended, he must be released immediately unless the detention is otherwise authorized. Suspension of detention may occur on no more than two occasions. The total time for which detention may be suspended is not to exceed four months from the date of the first suspension.

The person must return to the Garda station at the time and date specified by notice in writing given to him. Notice in writing must be given of the Garda station, time and place to which he must return. Its effect must be explained to the person concerned. The notice must be issued by a member of Garda of the rank of inspector above where there are reasonable grounds for believing it is necessary for the proper investigation of the offence. The prescribed form of notice must be given.

Where detention has been suspended, then when the person concerned returns, the detention is continued in accordance with the Criminal Justice Act 1984. The period of time commencing on return is included in the period of detention permitted. Where the member in charge no longer has reasonable grounds for believing that the person for detention is necessary for the purpose of investigation of the offence, the person must be released from custody immediately unless his detention is otherwise authorized by law.

Detention Overnight

A person may not be detained between the hours of midnight and 8:00 a.m. other than where the suspect objects to the suspension of questioning or the member in charge authorise questioning on the grounds that the delay would involve the risk of one of a number of circumstances. These are

injury to other persons
serious loss or damage to property,
destruction or interference with evidence,
alerting an accomplice or
hindering the recovery of property obtained as a result of the offence.

The detained person must be notified that he has a right to object to suspension. He is to be notified of any authorization that questioning is to continue and must be advised of its effect. The periods during which the questioning is suspended does not count as part of the detention period.

A person who fails to return to a Garda station for the continuation of a period of detention that has been suspended may be arrested without a warrant and returned to the Garda station appointed for continuation. The period commencing on his arrest and ending on his arrival at the Garda station is not counted for the purpose of the period of detention under The Criminal Justice Act 1984.