{"id":1466,"date":"2021-07-23T21:04:55","date_gmt":"2021-07-23T21:04:55","guid":{"rendered":"http:\/\/legalblog.ie\/?p=1466"},"modified":"2022-08-19T10:09:51","modified_gmt":"2022-08-19T10:09:51","slug":"silence-alibi","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/silence-alibi\/","title":{"rendered":"Silence Rights &#038; Limits"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/silence-alibi\/#Right_to_Silence\" title=\"Right to Silence\">Right to Silence<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/silence-alibi\/#COnstitution_and_Human_Rights\" title=\"COnstitution and Human Rights\">COnstitution and Human Rights<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/silence-alibi\/#General_Legislation\" title=\"General Legislation\">General Legislation<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/silence-alibi\/#Failure_to_Explain\" title=\"Failure to Explain\">Failure to Explain<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/silence-alibi\/#Writtent_Stateement_Admissible\" title=\"Writtent Stateement Admissible\">Writtent Stateement Admissible<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Right_to_Silence\"><\/span>Right to Silence<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In a criminal case, the accused cannot be forced to testify.\u00a0 The prosecution may not comment on his \u00a0failure to testify. \u00a0The judge may do so, but subject to limitations and constraints.<\/p>\n<p>The accused \u00a0cannot be compelled to say anything prior to his trial.\u00a0 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.<\/p>\n<p>In certain circumstances, adverse comments can be made on the failure to respond account in certain contexts and subject to certain conditions.\u00a0 Prior warnings must be given to the accused.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"COnstitution_and_Human_Rights\"><\/span>COnstitution and Human Rights<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The privilege against self-incrimination has been recognised as a Constitutional right.\u00a0 However, as with other constitutional rights, it is subject to limitations.<\/p>\n<p>The Offences against the State legislation has provided for many years, that \u00a0it is an offence to refuse to account for movements and give certain information relative to crimes under the legislation; so-called scheduled offences. \u00a0The 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. \u00a0In the context of the Offences against the State legislation, it was decided to be proportionate.<\/p>\n<p>The European Court of Human Rights has gone further in protecting the right to silence than the Irish courts.\u00a0 The provisions of the Offences against the State Act and the requirement to account for movement was found to be in contravention of \u00a0Convention.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"General_Legislation\"><\/span>General Legislation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Since the mid-1990s \u00a0legislation 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.<\/p>\n<p>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. \u00a0\u00a0For example, it applies in areas such as tax audits and financial services, and other regulatory investigations.<\/p>\n<p>There is now general \u00a0legislation applicable to all serious offences under the Criminal Justice Acts which \u00a0allows the courts to draw inference in respect to failures to explain or account for certain matters. \u00a0The Constitutionality of these provisions have also been upheld. \u00a0In 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, \u00a0the court make inferences as it believes proper from the same.<\/p>\n<p>The investigatory powers have been upheld in the context of regulatory investigations \u00a0on the basis that the statements are not admissible in subsequent criminal proceedings. \u00a0Such powers are now found in many pieces of modern legislation. \u00a0It is an offence to refuse to answer particular questions put by investigator or officers.\u00a0 However, statements made in response to such compelled answers are not admissible.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Failure_to_Explain\"><\/span>Failure to Explain<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Where \u00a0in 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 S\u00edoch\u00e1na reasonably believes may be attributable to participation in an offence and the member informs the accused that he so believes, the accused\u2019s 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.<\/p>\n<p>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.<\/p>\n<p>The provision only applies if the accused is informed in an ordinary language when questioned, charged, or \u00a0informed as the case may be, \u00a0that 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.<\/p>\n<p>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.\u00a0 The court or subject to the \u00a0judge\u2019s direction , the jury shall for the purpose of drawing inferences, have regard to whenever if appropriate to account of the concerned was first \u00a0given by the accused.<\/p>\n<p>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<\/p>\n<p>offence.\u00a0 The account must be such which in the circumstances at the time clearly call for explanation.\u00a0 The same conditions as set out above apply.<\/p>\n<p>Similar provisions apply where a person on being questioned by a member of a Garda S\u00edoch\u00e1na 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<\/p>\n<p>A person may not be convicted solely on the evidence of such an inference.\u00a0 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.<\/p>\n<p>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 \u00a0provision shall not apply unless the evidence is recorded or the accused consents in writing to it not being so recorded.<\/p>\n<p>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 \u00a0of 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.<\/p>\n<p>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 \u00a0thereafter 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Writtent_Stateement_Admissible\"><\/span>Writtent Stateement Admissible<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A written statement may be admissible in evidence in relation to certain matters.\u00a0 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.<\/p>\n<p>In the case of a person not yet 21 years of age, it must state his age.\u00a0 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 \u00a0there 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.<\/p>\n<p>A person who has served a statement , \u00a0may still call the witness.\u00a0 The court may also of its motion, require the attendance of the witness.<\/p>\n<p>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.\u00a0 Such submission is the conclusive evidence of the facts concerned.<\/p>\n<p>An admission may be made before or after hearing.\u00a0 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.\u00a0 If made on behalf of the accused, shall be made by Counsel \u00a0or a solicitor.\u00a0 If made at any stage before the hearing, must be \u00a0approved by Counsel or a solicitor.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-1466\" data-postid=\"1466\" class=\"themify_builder_content themify_builder_content-1466 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Right to Silence In a criminal case, the accused cannot be forced to testify.\u00a0 The prosecution may not comment on his \u00a0failure to testify. \u00a0The judge may do so, but subject to limitations and constraints. The accused \u00a0cannot be compelled to say anything prior to his trial.\u00a0 Generally, inferences may not be drawn from the [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[173],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1466"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=1466"}],"version-history":[{"count":5,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1466\/revisions"}],"predecessor-version":[{"id":1523,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1466\/revisions\/1523"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=1466"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=1466"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=1466"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}