Silence Rights & Limits

Right to Silence

In a criminal case, the accused cannot be forced to testify.  The prosecution may not comment on his  failure to testify.  The judge may do so, but subject to limitations and constraints.

The accused  cannot be compelled to say anything prior to his trial.  Generally, inferences may not be drawn from the failure to answer questions or tell his story prior to the trial or after trial. There are, however, limitations on these rights under criminal justice legislation enacted within the last twenty years.

In certain circumstances, adverse comments can be made on the failure to respond account in certain contexts and subject to certain conditions.  Prior warnings must be given to the accused.

Constitution and Human Rights

The privilege against self-incrimination has been recognised as a Constitutional right.  However, as with other constitutional rights, it is subject to limitations.

The Offences against the State legislation has provided for many years, that  it is an offence to refuse to account for movements and give certain information relative to crimes under the legislation; so-called scheduled offences.  The Supreme Court reviewed this provision in the 1990s and decided that although it appeared to breach the privilege against self-incrimination, that privilege could be limited by public order provided the encroachment was proportionate.  In the context of the Offences against the State legislation, it was decided to be proportionate.

The European Court of Human Rights has gone further in protecting the right to silence than the Irish courts.  The provisions of the Offences against the State Act and the requirement to account for movement was found to be in contravention of  Convention.

General Legislation

Since the mid-1990s  legislation of this type, by which it may be an offence to fail to respond to questions by the Gardai or other authorities has been enacted more generally and in particular contexts, increased.

Such provisions have been introduced in the context of several regulatory regimes where it is deemed appropriate for the proper administration that persons be subject to prosecution for failure to cooperate or answer.   For example, it applies in areas such as tax audits and financial services, and other regulatory investigations.

There is now general  legislation applicable to all serious offences under the Criminal Justice Acts which  allows the courts to draw inference in respect to failures to explain or account for certain matters.  The Constitutionality of these provisions have also been upheld.  In these cases, where a person fails to mention a fact later relied on in his defence which might reasonably be expected to be mentioned at an earlier stage,  the court make inferences as it believes proper from the same.

The investigatory powers have been upheld in the context of regulatory investigations  on the basis that the statements are not admissible in subsequent criminal proceedings.  Such powers are now found in many pieces of modern legislation.  It is an offence to refuse to answer particular questions put by investigator or officers.  However, statements made in response to such compelled answers are not admissible.

Failure to Explain

Where  in proceedings for an arrestable offence, evidence is given that the accused when charged was requested to account for any object, substance or mark on his person, clothing, footwear or in his possession or in any place in which he was, which the member of the Garda Síochána reasonably believes may be attributable to participation in an offence and the member informs the accused that he so believes, the accused’s failure or refusal to give an account being one, which in the circumstances clearly call for explanation when so questioned, then the court in determining whether the charges should be dismissed at the preliminary stage or in the prosecution, may draw such inferences from the failure or refusal as appear proper.

The failure or refusal may on the basis of such inferences be treated as corroborative of any evidence in relation to which the matter is material. A person shall not be convicted solely on the basis of an inference drawn in the above circumstances.

The provision only applies if the accused is informed in an ordinary language when questioned, charged, or  informed as the case may be,  that the failure or refusal may have the above effect and the person has had the reasonable opportunity to consult with a solicitor before such failure or refusal.

The provision applies only where the questioning is recorded by electronic or similar means or the person concerned consents in writing to it not being so recorded.  The court or subject to the  judge’s direction , the jury shall for the purpose of drawing inferences, have regard to whenever if appropriate to account of the concerned was first  given by the accused.

Similar provisions apply where a person is requested to account for his presence at a particular place at or about the time the offence is alleged to have been committed, where the member reasonably believes that the presence of the accused at the place and at the time may be attributable to the commission of the offence.  The account must be such which in the circumstances at the time clearly call for explanation.  The same conditions as set out above apply.

Similar provisions apply where a person on being questioned by a member of a Garda Síochána in relation to an arrestable offence (imprisonment more than 5 years) or when being charged with the offence that he or she might be prosecuted with, fails to mention any fact relied on in his defence in those proceedings being a fact, which in the circumstances existing at the time, clearly call for an explanation from him and or when so questioned, charged or informed as the case may be

A person may not be convicted solely on the evidence of such an inference.  The inference is not to have effect unless the accused was told in ordinary language when being questioned, charged or informed, that the effect of failure to mention a fact to this the provision applies and was given a reasonable opportunity to consult a solicitor before such failure occurred.

The court or jury shall for the purpose of drawing inferences have regard to the time, when the fact was first mentioned by the accused. The  provision shall not apply unless the evidence is recorded or the accused consents in writing to it not being so recorded.

Alibi

In a trial, the accused is not permitted without leave of court to introduce evidence in support of an alibi unless he has given prior notice of particulars  of the alibi. Leave to introduce an alibi evidence shall not be refused if the accused was not informed of the requirements when sent forward to trial.

The notice must contain certain information including the name and address of the witnesses or if not known, any information which may be of material assistance in finding them. If the name is not included, the court is to satisfied that the accused before giving notice and  thereafter continued to take reasonable steps to ascertain their name and address, and that the name is subsequently given if it is known or ascertained or if not traced, he gives notice of such information in this possession regarding location.

Writtent Stateement Admissible

A written statement may be admissible in evidence in relation to certain matters.  It must purport to be signed by the person who makes it, contain a declaration that it is believed to be true, a copy is served by or on behalf of the party proposing to tender it and the other party does not objects within 21 days. There conditions need not to be complied which if the parties agreed to the admission of the statement.

In the case of a person not yet 21 years of age, it must state his age.  In the case of a person who cannot read, it must be stated to have been read before him, and the person so reading must confirm. If  there is an exhibit, it must be accompanied by the copy documented or be by such information as may be necessary to enable the person served to inspect the document or a copy.

A person who has served a statement ,  may still call the witness.  The court may also of its motion, require the attendance of the witness.

Any fact of which oral evidence may be given in criminal proceedings, may be admitted by or on behalf of the accused or the prosecution.  Such submission is the conclusive evidence of the facts concerned.

An admission may be made before or after hearing.  If made otherwise than in court shall be in writing. If made in writing, it shall be signed by the individual or on behalf of a company.  If made on behalf of the accused, shall be made by Counsel  or a solicitor.  If made at any stage before the hearing, must be  approved by Counsel or a solicitor.