Right to Silence Issues
CRIMINAL JUSTICE ACT 1984
Inferences from failure, refusal to account for objects, marks, etc.
F49[18.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
was requested by the member to account for any object, substance or mark, or any mark on any such object, that was—
(i) on his or her person,
(ii) in or on his or her clothing or footwear,
(iii) otherwise in his or her possession, or
(iv) in any place in which he or she was during any specified period,
and which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.
(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for a matter to which subsection (1) applies.
(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.
(4) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or
(c) be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear which could properly be drawn apart from this section.
(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of the matter concerned was first given by the accused.
(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(7) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.
(8) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(9) In this section “arrestable offence” has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.]
Annotations
Amendments:
F49
Substituted (1.07.2007) by Criminal Justice Act 2007 (29/2007), s. 28(1), S.I. 236 of 2007, subject to transitional provisions in subss. (2) and (3).
F50
Substituted by Criminal Justice Act 2011 (22/2011), s. 9(c), not commenced as of date of revision.
Modifications (not altering text):
C75
Prospective affecting provision: subs. (3)(b) substituted by Criminal Justice Act 2011 (22/2011), s. 9(c), not commenced as of date of revision.
F50[(b) the accused was informed before such failure or refusal occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, the accused was afforded an opportunity to so consult before such failure or refusal occurred.]
C76
Application of section extended (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 52, S.I. No. 236 of 2007, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 23(4), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 108, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
52. —[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 50 as they apply to persons detained under section 4 of that Act.
…
C77
Application of section extended (9.09.1996) by Criminal Justice (Drug Trafficking) Act 1996 (29/1996), s. 5, S.I. No. 257 of 1996, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 22(3), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 106, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
5.—[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 2 as they apply to persons detained under section 4 of the Act of 1984.
…
Editorial Notes:
E31
Previous affecting provision: subss. (1) and (2) amended (1.10.2001) by Criminal Justice Act 1999 (10/1999), s. 16(1) and (2), S.I. No. 193 of 2001; substituted as per F-note above.
Inferences from accused’s presence at a particular place.
F51[19.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
was requested by the member to account for his or her presence at a particular place at or about the time the offence is alleged to have been committed, and the member reasonably believes that the presence of the accused at that place and at that time may be attributable to his or her participation in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.
(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for his or her presence at a particular place under subsection (1).
(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for his or her presence at a particular place might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.
(4) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or
(c) be taken to preclude the drawing of any inference from the failure or refusal of a person to account for his or her presence which could properly be drawn apart from this section.
(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of his or her presence at a particular place concerned was first given by the accused.
(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(7) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(8) In this section “arrestable offence” has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.]
Annotations
Amendments:
F51
Substituted (1.07.2007) by Criminal Justice Act 2007 (29/2007), s. 29(1), S.I. No. 236 of 2007; subject to transitional provisions in s. 29(2) and (3).
F52
Substituted by Criminal Justice Act 2011 (22/2011), s. 9(d), not commenced as of date of revision.
Modifications (not altering text):
C78
Prospective amending provision: subs. (3)(b) substituted by Criminal Justice Act 2011 (22/2011), s. 9(d), not commenced as of date of revision.
F52[(b) the accused was informed before such failure or refusal occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, the accused was afforded an opportunity to so consult before such failure or refusal occurred.]
C79
Application of section extended (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 52, S.I. No. 236 of 2007, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 23(4), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 108, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
52. —[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 50 as they apply to persons detained under section 4 of that Act.
…
C80
Application of section extended (9.09.1996) by Criminal Justice (Drug Trafficking) Act 1996 (29/1996), s. 5, S.I. No. 257 of 1996, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 22(3), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 106, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
5.—[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 2 as they apply to persons detained under section 4 of the Act of 1984.
…
Editorial Notes:
E32
Previous affecting provision: subss. (1) and (2) amended (1.10.2001) by Criminal Justice Act 1999 (10/1999), s. 16(1) and (2), S.I. No. 193 of 2001; substituted as per F-note above.
F53
[
Inferences from failure of accused to mention particular facts.
19A.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material.
(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure to mention a fact to which subsection (1) applies.
(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure to mention a fact to which that subsection applies might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure occurred.
(4) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section, or
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section.
(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to when the fact concerned was first mentioned by the accused.
(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(7) Subject to section 7 of the Criminal Justice (Drug Trafficking) Act 1996 and section 5 of the Offences Against the State (Amendment) Act 1998, this section shall not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this section.
(8) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(9) In this section “arrestable offence” has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.]
Annotations
Amendments:
F53
Inserted (1.07.2007) by Criminal Justice Act 2007 (29/2007), s. 30, S.I. No. 236 of 2007.
F54
Substituted by Criminal Justice Act 2011 (22/2011), s. 9(e), not commenced as of date of revision.
Modifications (not altering text):
C81
Prospective amending provision: subs. (3)(b) substituted by Criminal Justice Act 2011 (22/2011), s. 9(e), not commenced as of date of revision.
F54[(b) the accused was informed before such failure occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, the accused was afforded an opportunity to so consult before such failure occurred.]
C82
Application of section extended (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 52, S.I. No. 236 of 2007, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 23(4), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 108, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
52. —[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 50 as they apply to persons detained under section 4 of that Act.
…
C83
Application of section extended (9.09.1996) by Criminal Justice (Drug Trafficking) Act 1996 (29/1996), s. 5, S.I. No. 257 of 1996, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 22(3), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 106, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
5.—[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 2 as they apply to persons detained under section 4 of the Act of 1984.
…
Miscellaneous
CRIMINAL JUSTICE ACT 2007
PART 4
Inferences to be Drawn in Certain Circumstances
Inferences from failure or refusal to account for objects, marks, etc.
28.— (1) The Act of 1984 is amended by the substitution of the following section for section 18:
“18.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
was requested by the member to account for any object, substance or mark, or any mark on any such object, that was—
(i) on his or her person,
(ii) in or on his or her clothing or footwear,
(iii) otherwise in his or her possession, or
(iv) in any place in which he or she was during any specified period,
and which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.
(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for a matter to which subsection (1) applies.
(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.
(4) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or
(c) be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear which could properly be drawn apart from this section.
(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of the matter concerned was first given by the accused.
(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(7) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.
(8) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(9) In this section ‘arrestable offence’ has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.”.
(2) This section shall not apply to a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear if the failure or refusal occurred before the commencement of this section.
(3) Subsection (1) shall not affect the application of section 18 of the Act of 1984 to a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear if the failure or refusal occurred before the commencement of this section, and that section shall apply to such a failure or refusal as if subsection (1) had not been enacted.
Inferences from failure or refusal to account for accused’s presence at a particular place.
29.— (1) The Act of 1984 is amended by the substitution of the following section for section 19:
“19.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
was requested by the member to account for his or her presence at a particular place at or about the time the offence is alleged to have been committed, and the member reasonably believes that the presence of the accused at that place and at that time may be attributable to his or her participation in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.
(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for his or her presence at a particular place under subsection (1).
(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for his or her presence at a particular place might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.
(4) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or
(c) be taken to preclude the drawing of any inference from the failure or refusal of a person to account for his or her presence which could properly be drawn apart from this section.
(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of his or her presence at a particular place concerned was first given by the accused.
(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(7) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(8) In this section ‘arrestable offence’ has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.”.
(2) This section shall not apply to a failure or refusal of a person to account for his or her presence if the failure or refusal occurred before the commencement of this section.
(3) Subsection (1) shall not affect the application of section 19 of the Act of 1984 to a failure or refusal of a person to account for his or her presence if the failure or refusal occurred before the commencement of this section, and that section shall apply to such a failure or refusal as if subsection (1) had not been enacted.
Inferences from failure of accused to mention particular facts.
30.— The Act of 1984 is amended by the insertion of the following section after section 19:
“19A.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material.
(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure to mention a fact to which subsection (1) applies.
(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure to mention a fact to which that subsection applies might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure occurred.
(4) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section, or
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section.
(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to when the fact concerned was first mentioned by the accused.
(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(7) Subject to section 7 of the Criminal Justice (Drug Trafficking) Act 1996 and section 5 of the Offences Against the State (Amendment) Act 1998, this section shall not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this section.
(8) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(9) In this section ‘arrestable offence’ has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.”.
Amendment of section 2 of Offences Against the State (Amendment) Act 1998.
31.— (1) Section 2 of the Offences Against the State (Amendment) Act 1998 is amended—
(a) in subsection (1), by—
(i) the substitution of “in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967” for “in determining whether to send forward the accused for trial”, and
(ii) the substitution of “a person shall not be convicted of the offence solely or mainly on an inference drawn from such a failure” for “a person shall not be convicted of the offence solely on an inference drawn from such a failure”,
(b) by the substitution of the following subsection for subsection (2):
“(2) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned what the effect of such a failure might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such a failure occurred.”,
and
(c) by the insertion of the following subsections after subsection (3):
“(3A) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, an answer to the question concerned was first given by the accused.
(3B) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(3C) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.”.
(2) This section shall not apply to a failure to answer a question to which section 2 of the Offences Against the State (Amendment) Act 1998 relates if the failure occurred before the commencement of this section.
Regulations.
32.— (1) The Minister may make regulations providing for the administration of cautions by members of the Garda Síochána to persons in relation to offences.
(2) The regulations may include provision for—
(a) the form of caution to be administered to a person—
(i) at any time before the person is charged with an offence, on being questioned by a member of the Garda Síochána in relation to the offence,
(ii) when the person is being charged with an offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it, or
(iii) in any other circumstances in which a caution is required, and
(b) the procedures that are to apply in circumstances where a person to whom a caution has been administered is to have the caution withdrawn and a different caution administered to him or her.
(3) Regulations under this section may provide for different forms of caution to be administered to a person in different circumstances and in different classes of cases.
(4) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that member liable to any criminal or civil proceedings or of itself affect the admissibility in evidence of anything said by, or the silence of, a person to whom subsection (2)(a) applies.
(5) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.
(6) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.