Historically, the right to silence was a fundamental aspect of the criminal process. One aspect was the common law privilege against self-incrimination. The right has several different aspects ranging from the investigative phase to the trial phase.
The Irish Courts have recognised that the right to silence is a corollary of the right of freedom of expression and an integral part of the notion of a right to trial in due course of law. The Criminal Justice Act 1984, which allowed a general right to detain persons for questioning, recognised the right to silence.
Emergency legislation has long provided exceptions to the right to silence. These have been regarded as justified and necessary to deal with terrorist-type offences. Significant emergency legislation was passed by the Irish Free State.
On adoption of the present 1937 Constitution, coinciding with the outbreak of the Second World War and in light of subversive activity at the time, the Offences against the State Act 1939 was passed.
S.30 authorised Gardai to demand of a suspect that he account for his movements and actions during a specified period. Failure or refusal was an offence subject on summary conviction to imprisonment up to six months. In 1996, the Supreme Court held in a challenge to the legislation that the restriction on the right to silence was legitimate. It was undertaken in the context of maintaining peace and order and the provision was upheld as constitutional.
The European Court of Human Rights has ruled that the statutory power to compel evidence infringes the right to a fair trial under the Convention. Although not specifically mentioned in the Convention, the right to silence and the right not to incriminate oneself are generally recognised standards which lie at the heart of the notion of fair procedures. Article 6 presupposes the prosecution in a criminal case, and proves the case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused.
Shortly after the European Court on Human Rights case, the Supreme Court ruled that answers obtained on foot of compulsory statutory powers should only be admissible if the Judge was satisfied it was voluntary.
When a challenge to the Offences against the State Act was referred to the European Court, it was found that Ireland had violated the applicant’s rights under the Convention. The European Court found that the compulsory nature of the provision destroyed the privilege against self-incrimination. In contrast to the Supreme Court, the European Court found that the balance had not been appropriately struck. Notwithstanding the context of antiterrorism legislation, the interference with fundamental rights was too far-reaching.
Section 18 of the Criminal Justice Act provides that a trial court may draw inferences from the failure of an accused to account for the presence of an object, substance or mark on his person or in his possession. Section 19 allows for the drawing of inferences from the failure or refusal to account for his presence at a particular location.
The constitutionality of the above provisions was upheld and found to be proportionate by the Supreme Court. In 1997, the Supreme Court allowed for the fact that there must be other evidence, and the Court may draw only inferences as appear proper. An adverse inference could not necessarily be drawn where its prejudicial effect would outweigh its probative value.
The Irish Courts drew a distinction between powers compelling answers and their use in later criminal proceedings. The voluntariness depends on the circumstances. The fact that there are statutory powers such that a refusal to cooperate or answer is an offence does not necessarily make the statement involuntary.
The accused must be cautioned regarding the consequences of failing to answer or refusing to answer. An inference may only be drawn where the Court thinks proper. It may corroborate other items of evidence but cannot support a conviction by itself.
The anti-drug trafficking legislation enacted in 1996 and the anti-terrorism legislation enacted in 1998 included provisions allowing for the drawing of inferences in the above manner.
Notwithstanding the above legislation, it appears that the prosecution cannot cross-examine the accused about refusal to answer, nor can the judge comment on refusal to answer.
The Criminal Justice Act, 2007 provides in relation to the general provision for detention for questioning, that the accused must have been first afforded a reasonable opportunity to consult a solicitor before the refusal or failure to answer. Similar provisions were provided for 1996 drug trafficking and 1998 anti-terrorism legislation. Following a later Supreme Court case in 2013 there is a right to have a lawyer present during question.
The 2007 Act applies to all arrestable offences. It allows a Court to draw such inferences as may appear proper from failure to mention particular facts. The questioning may take place at various times prior to trial. It may be when the accused is charged or informed about the possibility of prosecution. It is most likely to occur in interviews of detained persons.
If the accused fails to mention any fact relied on in his defence in the proceedings being a fact which clearly calls for an explanation from him, when so questioned, charged or informed, the Court, subject to the Judge’s directions where there is a jury may make such inferences from those facts in determining whether the accused is guilty of the offence charged.
An inference may corroborate other evidence. An accused may not be convicted solely or mainly on the basis of the inference. The accused must have been cautioned in ordinary language. The interview must be electronically recorded unless the accused has consented to it not being so recorded.
The lawyer /solicitor must be informed that the provision is or is likely to be invoked. The opportunity to consult or have a lawyer present should be given around the time when the provision is invoked or may be invoked. The client and solicitor must be aware that the provision has been or is at least likely to be invoked.
The drawing of inferences does not of itself breach the European Convention on Human Rights. Whether the drawing of adverse inferences from silence infringes, the Convention is a matter to be determined in the circumstances having regard to the situation where the inferences may be drawn. The weight attached to them by the national Courts in their assessment of evidence and the degree of compulsion inherent in the situation.
Particular difficulty arises when legal advice is given to remain silent. The question arises as to whether the legal advice is a sufficient explanation for silence. In these cases, the position must be assessed on the particular facts. A genuine reliance on legal advice may not be enough to bar a drawing of inference. It must be reasonable in the circumstances. The jury may conclude that he has remained silent, not because of legal advice but because he has no explanation to give.
The European Court of Human Rights has found the above approach to be incompatible with the Convention. The jury should have been directed that they could draw an adverse inference only if they were satisfied that the applicant’s silence should be attributed to having no explanation, which would survive cross-examination.
The Court held that the jury should have been instructed that it must be satisfied that silence could not sensibly be attributed to having no case to answer or none that would stand up to police questioning. It should not draw an adverse inference from silence in itself.
Voluntariness in Confessions
It is an essential constitutional principle that a confession must be voluntary. It may not be admitted if it is not voluntary in the sense of having been obtained from fear or prejudice or hope of advantage exercised or held out by a person in authority. If unfair psychological pressure is exerted to extract a confession, there may be a deliberate denial of fundamental fairness.
It is part of the fundamental fairness flowing from the constitutional right to fair procedures in criminal matters. It is part of the right to a trial in due course of law.
Oppression is questioning which by its nature, duration or other attendant circumstances, including the fact of custody, excites hope (such as the hope of release) or fears as may affect the mind of the subject that his will crumbles and he speaks, when otherwise he would have stayed silent.
A suspect should not be subjected to unfair or oppressive questioning. Prolonged and persistent questioning during a protracted period of detention may constitute oppression even without physical violence or threats of violence. It can reduce the will of the suspect such that the statement becomes involuntary.
A caution is not of itself sufficient to make a subsequent confession voluntary. All the circumstances must be taken into account in order to assess whether the statement may be regarded as the free and voluntary act or omission of the person purporting to make it.
Statements may be involuntary if they are induced by a threat or a promise held out by a person in authority. If the words are objectivity capable of amounting to a threat or promise, and the accused actually understand them, a confession in consequence may be inadmissible.
Even if a statement is voluntarily obtained, in the above sense, it may be inadmissible. The Court may, by reason of the manner and circumstances in which it is obtained may hold that it falls below the required standards of fairness. The requirement for fundamental fair procedures is a separate criterion. It has not been involved to the same extent by the Courts.