{"id":27285,"date":"2023-09-13T20:55:45","date_gmt":"2023-09-13T20:55:45","guid":{"rendered":"https:\/\/legalblog.ie\/?p=27285"},"modified":"2024-03-23T10:40:57","modified_gmt":"2024-03-23T10:40:57","slug":"right-to-silence-issues","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/right-to-silence-issues\/","title":{"rendered":"Right to Silence Issues"},"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 ' ><ul class='ez-toc-list-level-3' ><li class='ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/#Background_Overview\" title=\"Background &amp; Overview\">Background &amp; Overview<\/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\/right-to-silence-issues\/#ECHR\" title=\"ECHR\">ECHR<\/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\/right-to-silence-issues\/#Inferences_from_Silence_in_Some_Cases\" title=\"Inferences from Silence in Some Cases\">Inferences from Silence in Some Cases<\/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\/right-to-silence-issues\/#Anti-Drug_Trafficking_Legislation\" title=\"Anti-Drug Trafficking Legislation\">Anti-Drug Trafficking Legislation<\/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\/right-to-silence-issues\/#2007_Act\" title=\"2007 Act\">2007 Act<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/#Failure_to_Mention\" title=\"Failure to Mention\">Failure to Mention<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/#Voluntariness_in_Confessions\" title=\"Voluntariness in Confessions\">Voluntariness in Confessions<\/a><\/li><\/ul><\/li><li class='ez-toc-page-1 ez-toc-heading-level-2'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/2\/#CRIMINAL_JUSTICE_ACT_1984\" title=\"CRIMINAL JUSTICE ACT 1984\">CRIMINAL JUSTICE ACT 1984<\/a><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/2\/#Inferences_from_failure_refusal_to_account_for_objects_marks_etc\" title=\"Inferences from failure, refusal to account for objects, marks, etc.\">Inferences from failure, refusal to account for objects, marks, etc.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/2\/#Inferences_from_failure_of_accused_to_mention_particular_facts\" title=\"Inferences from failure of accused to mention particular facts.\">Inferences from failure of accused to mention particular facts.<\/a><\/li><\/ul><\/li><\/ul><\/li><li class='ez-toc-page-1 ez-toc-heading-level-2'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/2\/#CRIMINAL_JUSTICE_ACT_2007\" title=\"CRIMINAL JUSTICE ACT 2007\">CRIMINAL JUSTICE ACT 2007<\/a><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/2\/#Inferences_from_failure_or_refusal_to_account_for_objects_marks_etc\" title=\"Inferences from failure or refusal to account for objects, marks, etc.\">Inferences from failure or refusal to account for objects, marks, etc.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-13\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/2\/#Inferences_from_failure_or_refusal_to_account_for_accuseds_presence_at_a_particular_place\" title=\"Inferences from failure or refusal to account for accused&#8217;s presence at a particular place.\">Inferences from failure or refusal to account for accused&#8217;s presence at a particular place.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-14\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/2\/#Inferences_from_failure_of_accused_to_mention_particular_facts-2\" title=\"Inferences from failure of accused to mention particular facts.\">Inferences from failure of accused to mention particular facts.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-15\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/2\/#Amendment_of_section_2_of_Offences_Against_the_State_Amendment_Act_1998\" title=\"Amendment of section 2 of Offences Against the State (Amendment) Act 1998.\">Amendment of section 2 of Offences Against the State (Amendment) Act 1998.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-16\" href=\"https:\/\/legalblog.ie\/right-to-silence-issues\/2\/#Regulations\" title=\"Regulations.\">Regulations.<\/a><\/li><\/ul><\/li><\/ul><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Background_Overview\"><\/span>Background &amp; Overview<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Historically, the right to silence was a fundamental aspect of the criminal process.\u00a0 One aspect was the common law privilege against self-incrimination.\u00a0 The right has several different aspects ranging from the investigative phase to the trial phase.<\/p>\n<p>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.\u00a0 The Criminal Justice Act 1984, which allowed a general right to detain persons for questioning, recognised the right to silence.<\/p>\n<p>Emergency legislation has long provided exceptions to the right to silence.\u00a0 These have been regarded as justified and necessary to deal with terrorist-type offences.\u00a0 Significant emergency legislation was passed by the Irish Free State.<\/p>\n<p>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.<\/p>\n<p>S.30 authorised Gardai to demand of a suspect that he account for his movements and actions during a specified period.\u00a0 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.\u00a0 It was undertaken in the context of maintaining peace and order and the provision was upheld as constitutional.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"ECHR\"><\/span>ECHR<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.\u00a0Shortly 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.<\/p>\n<p>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\u2019s rights under the Convention.\u00a0 The European Court found that the compulsory nature of the provision destroyed the privilege against self-incrimination.<\/p>\n<p>In contrast to the Supreme Court, the European Court found that the balance had not been appropriately struck. \u00a0Notwithstanding the context of antiterrorism legislation, the interference with fundamental rights was too far-reaching.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Inferences_from_Silence_in_Some_Cases\"><\/span>Inferences from Silence in Some Cases<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Section 18 of the Criminal Justice Act 1984 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.\u00a0 Section 19 allows for the drawing of inferences from the failure or refusal to account for his presence at a particular location.<\/p>\n<p>The constitutionality of the above provisions was upheld and found to be proportionate by the Supreme Court. \u00a0In 1997, the Supreme Court allowed for the fact that there must be other evidence, and the Court may draw only inferences as appear proper.\u00a0 An adverse inference could not necessarily be drawn where its prejudicial effect would outweigh its probative value.<\/p>\n<p>The Irish Courts drew a distinction between powers compelling answers and their use in later criminal proceedings.\u00a0 The voluntariness depends on the circumstances.\u00a0 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.<\/p>\n<p>The accused must be cautioned regarding the consequences of failing to answer or refusing to answer.\u00a0 An inference may only be drawn where the Court thinks proper.\u00a0 It may corroborate other items of evidence but cannot support a conviction by itself.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Anti-Drug_Trafficking_Legislation\"><\/span>Anti-Drug Trafficking Legislation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"2007_Act\"><\/span>2007 Act<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.<\/p>\n<p>The 2007 Act applies to all arrestable offences.\u00a0 It allows a Court to draw such inferences as may appear proper from failure to mention particular facts.\u00a0 The questioning may take place at various times prior to trial.\u00a0 It may be when the accused is charged or informed about the possibility of prosecution.\u00a0 It is most likely to occur in interviews of detained persons.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Failure_to_Mention\"><\/span>Failure to Mention<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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&#8217;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.<\/p>\n<p>An inference may corroborate other evidence.\u00a0 An accused may not be convicted solely or mainly on the basis of the inference.\u00a0 The accused must have been cautioned in ordinary language.\u00a0 The interview must be electronically recorded unless the accused has consented to it not being so recorded.<\/p>\n<p>The lawyer \/solicitor must be informed that the provision is or is likely to be invoked.\u00a0 The opportunity to consult or have a lawyer present should be given around the time when the provision is invoked or may be invoked.\u00a0 The client and solicitor must be aware that the provision has been or is at least likely to be invoked.<\/p>\n<p>The drawing of inferences does not of itself breach the European Convention on Human Rights.\u00a0 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.\u00a0 The weight attached to them by the national Courts in their assessment of evidence and the degree of compulsion inherent in the situation.<\/p>\n<p>Particular difficulty arises when legal advice is given to remain silent.\u00a0 The question arises as to whether the legal advice is a sufficient explanation for silence.\u00a0 In these cases, the position must be assessed on the particular facts.\u00a0 A genuine reliance on legal advice may not be enough to bar a drawing of inference.\u00a0 It must be reasonable in the circumstances.\u00a0 The jury may conclude that he has remained silent, not because of legal advice but because he has no explanation to give.<\/p>\n<p>The European Court of Human Rights has found the above approach to be incompatible with the Convention.\u00a0 The jury should have been directed that they could draw an adverse inference only if they were satisfied that the applicant\u2019s silence should be attributed to having no explanation, which would survive cross-examination.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Voluntariness_in_Confessions\"><\/span>Voluntariness in Confessions<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>It is an essential constitutional principle that a confession must be voluntary.\u00a0 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.<\/p>\n<p>If unfair psychological pressure is exerted to extract a confession, there may be a deliberate denial of fundamental fairness.\u00a0It is part of the fundamental fairness flowing from the constitutional right to fair procedures in criminal matters.\u00a0 It is part of the right to a trial in due course of law.<\/p>\n<p>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.<\/p>\n<p>A suspect should not be subjected to unfair or oppressive questioning.\u00a0 Prolonged and persistent questioning during a protracted period of detention may constitute oppression even without physical violence or threats of violence.\u00a0 It can reduce the will of the suspect such that the statement becomes involuntary.<\/p>\n<p>A caution is not of itself sufficient to make a subsequent confession voluntary. \u00a0All 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.<\/p>\n<p>Statements may be involuntary if they are induced by a threat or a promise held out by a person in authority.\u00a0 If the words are objectively capable of amounting to a threat or promise, and the accused actually understands them, a confession in consequence may be inadmissible.<\/p>\n<p>Even if a statement is voluntarily obtained, in the above sense, it may be inadmissible.\u00a0 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.\u00a0 The requirement for fundamental fair procedures is a separate criterion.\u00a0 It has not been involved to the same extent by the Courts.<\/p>\n<p><!--nextpage--><\/p>\n<h2>CRIMINAL JUSTICE ACT 1984<\/h2>\n<h4>Inferences from failure, refusal to account for objects, marks, etc.<\/h4>\n<p>F49[18.\u2014 (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused\u2014<\/p>\n<p>(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda S\u00edoch\u00e1na in relation to the offence, or<\/p>\n<p>(b) when being charged with the offence or informed by a member of the Garda S\u00edoch\u00e1na that he or she might be prosecuted for it,<\/p>\n<p>was requested by the member to account for any object, substance or mark, or any mark on any such object, that was\u2014<\/p>\n<p>(i) on his or her person,<\/p>\n<p>(ii) in or on his or her clothing or footwear,<\/p>\n<p>(iii) otherwise in his or her possession, or<\/p>\n<p>(iv) in any place in which he or she was during any specified period,<\/p>\n<p>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\u2019s 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.<\/p>\n<p>(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.<\/p>\n<p>(3) Subsection (1) shall not have effect unless\u2014<\/p>\n<p>(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<\/p>\n<p>(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.<\/p>\n<p>(4) Nothing in this section shall, in any proceedings\u2014<\/p>\n<p>(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,<\/p>\n<p>(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<\/p>\n<p>(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.<\/p>\n<p>(5) The court (or, subject to the judge\u2019s 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.<\/p>\n<p>(6) This section shall not apply in relation to the questioning of a person by a member of the Garda S\u00edoch\u00e1na unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.<\/p>\n<p>(7) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.<\/p>\n<p>(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.<\/p>\n<p>(9) In this section &#8220;arrestable offence&#8221; 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.]<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F49<br \/>\nSubstituted (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).<\/p>\n<p>F50<br \/>\nSubstituted by Criminal Justice Act 2011 (22\/2011), s. 9(c), not commenced as of date of revision.<\/p>\n<p>Modifications (not altering text):<\/p>\n<p>C75<br \/>\nProspective affecting provision: subs. (3)(b) substituted by Criminal Justice Act 2011 (22\/2011), s. 9(c), not commenced as of date of revision.<\/p>\n<p>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.]<\/p>\n<p>C76<br \/>\nApplication 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.<\/p>\n<p>Application of certain provisions of Act of 1984.<\/p>\n<p>52. \u2014[(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.<\/p>\n<p>&#8230;<\/p>\n<p>C77<br \/>\nApplication 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.<\/p>\n<p>Application of certain provisions of Act of 1984.<\/p>\n<p>5.\u2014[(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.<\/p>\n<p>&#8230;<\/p>\n<p>Editorial Notes:<\/p>\n<p>E31<br \/>\nPrevious 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.<\/p>\n<p>Inferences from accused\u2019s presence at a particular place.<\/p>\n<p>F51[19.\u2014 (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused\u2014<\/p>\n<p>(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda S\u00edoch\u00e1na in relation to the offence, or<\/p>\n<p>(b) when being charged with the offence or informed by a member of the Garda S\u00edoch\u00e1na that he or she might be prosecuted for it,<\/p>\n<p>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\u2019s 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.<\/p>\n<p>(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).<\/p>\n<p>(3) Subsection (1) shall not have effect unless\u2014<\/p>\n<p>(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<\/p>\n<p>(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.<\/p>\n<p>(4) Nothing in this section shall, in any proceedings\u2014<\/p>\n<p>(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,<\/p>\n<p>(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<\/p>\n<p>(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.<\/p>\n<p>(5) The court (or, subject to the judge\u2019s 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.<\/p>\n<p>(6) This section shall not apply in relation to the questioning of a person by a member of the Garda S\u00edoch\u00e1na unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.<\/p>\n<p>(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.<\/p>\n<p>(8) In this section &#8220;arrestable offence&#8221; 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.]<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F51<br \/>\nSubstituted (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).<\/p>\n<p>F52<br \/>\nSubstituted by Criminal Justice Act 2011 (22\/2011), s. 9(d), not commenced as of date of revision.<\/p>\n<p>Modifications (not altering text):<\/p>\n<p>C78<br \/>\nProspective amending provision: subs. (3)(b) substituted by Criminal Justice Act 2011 (22\/2011), s. 9(d), not commenced as of date of revision.<\/p>\n<p>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.]<\/p>\n<p>C79<br \/>\nApplication 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.<\/p>\n<p>Application of certain provisions of Act of 1984.<\/p>\n<p>52. \u2014[(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.<\/p>\n<p>&#8230;<\/p>\n<p>C80<br \/>\nApplication 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.<\/p>\n<p>Application of certain provisions of Act of 1984.<\/p>\n<p>5.\u2014[(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.<\/p>\n<p>&#8230;<\/p>\n<p>Editorial Notes:<\/p>\n<p>E32<br \/>\nPrevious 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.<\/p>\n<p>F53<\/p>\n<p>[<\/p>\n<h4>Inferences from failure of accused to mention particular facts.<\/h4>\n<p>19A.\u2014 (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused\u2014<\/p>\n<p>(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda S\u00edoch\u00e1na in relation to the offence, or<\/p>\n<p>(b) when being charged with the offence or informed by a member of the Garda S\u00edoch\u00e1na that he or she might be prosecuted for it,<\/p>\n<p>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\u2019s 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.<\/p>\n<p>(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.<\/p>\n<p>(3) Subsection (1) shall not have effect unless\u2014<\/p>\n<p>(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<\/p>\n<p>(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure occurred.<\/p>\n<p>(4) Nothing in this section shall, in any proceedings\u2014<\/p>\n<p>(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<\/p>\n<p>(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.<\/p>\n<p>(5) The court (or, subject to the judge\u2019s 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.<\/p>\n<p>(6) This section shall not apply in relation to the questioning of a person by a member of the Garda S\u00edoch\u00e1na unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(9) In this section &#8220;arrestable offence&#8221; 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.]<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F53<br \/>\nInserted (1.07.2007) by Criminal Justice Act 2007 (29\/2007), s. 30, S.I. No. 236 of 2007.<\/p>\n<p>F54<br \/>\nSubstituted by Criminal Justice Act 2011 (22\/2011), s. 9(e), not commenced as of date of revision.<\/p>\n<p>Modifications (not altering text):<\/p>\n<p>C81<br \/>\nProspective amending provision: subs. (3)(b) substituted by Criminal Justice Act 2011 (22\/2011), s. 9(e), not commenced as of date of revision.<\/p>\n<p>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.]<\/p>\n<p>C82<br \/>\nApplication 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.<\/p>\n<p>Application of certain provisions of Act of 1984.<\/p>\n<p>52. \u2014[(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.<\/p>\n<p>&#8230;<\/p>\n<p>C83<br \/>\nApplication 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.<\/p>\n<p>Application of certain provisions of Act of 1984.<\/p>\n<p>5.\u2014[(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.<\/p>\n<p>&#8230;<\/p>\n<p>&nbsp;<\/p>\n<p>Miscellaneous<\/p>\n<h2>CRIMINAL JUSTICE ACT 2007<\/h2>\n<p>PART 4<\/p>\n<p>Inferences to be Drawn in Certain Circumstances<\/p>\n<h4>Inferences from failure or refusal to account for objects, marks, etc.<\/h4>\n<p>28.\u2014 (1) The Act of 1984 is amended by the substitution of the following section for section 18:<\/p>\n<p>\u201c18.\u2014 (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused\u2014<\/p>\n<p>(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda S\u00edoch\u00e1na in relation to the offence, or<\/p>\n<p>(b) when being charged with the offence or informed by a member of the Garda S\u00edoch\u00e1na that he or she might be prosecuted for it,<\/p>\n<p>was requested by the member to account for any object, substance or mark, or any mark on any such object, that was\u2014<\/p>\n<p>(i) on his or her person,<\/p>\n<p>(ii) in or on his or her clothing or footwear,<\/p>\n<p>(iii) otherwise in his or her possession, or<\/p>\n<p>(iv) in any place in which he or she was during any specified period,<\/p>\n<p>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\u2019s 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.<\/p>\n<p>(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.<\/p>\n<p>(3) Subsection (1) shall not have effect unless\u2014<\/p>\n<p>(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<\/p>\n<p>(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.<\/p>\n<p>(4) Nothing in this section shall, in any proceedings\u2014<\/p>\n<p>(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,<\/p>\n<p>(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<\/p>\n<p>(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.<\/p>\n<p>(5) The court (or, subject to the judge\u2019s 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.<\/p>\n<p>(6) This section shall not apply in relation to the questioning of a person by a member of the Garda S\u00edoch\u00e1na unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.<\/p>\n<p>(7) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.<\/p>\n<p>(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.<\/p>\n<p>(9) In this section \u2018arrestable offence\u2019 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.\u201d.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<h4>Inferences from failure or refusal to account for accused&#8217;s presence at a particular place.<\/h4>\n<p>29.\u2014 (1) The Act of 1984 is amended by the substitution of the following section for section 19:<\/p>\n<p>\u201c19.\u2014 (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused\u2014<\/p>\n<p>(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda S\u00edoch\u00e1na in relation to the offence, or<\/p>\n<p>(b) when being charged with the offence or informed by a member of the Garda S\u00edoch\u00e1na that he or she might be prosecuted for it,<\/p>\n<p>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\u2019s 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.<\/p>\n<p>(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).<\/p>\n<p>(3) Subsection (1) shall not have effect unless\u2014<\/p>\n<p>(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<\/p>\n<p>(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.<\/p>\n<p>(4) Nothing in this section shall, in any proceedings\u2014<\/p>\n<p>(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,<\/p>\n<p>(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<\/p>\n<p>(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.<\/p>\n<p>(5) The court (or, subject to the judge\u2019s 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.<\/p>\n<p>(6) This section shall not apply in relation to the questioning of a person by a member of the Garda S\u00edoch\u00e1na unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.<\/p>\n<p>(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.<\/p>\n<p>(8) In this section \u2018arrestable offence\u2019 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.\u201d.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<h4>Inferences from failure of accused to mention particular facts.<\/h4>\n<p>30.\u2014 The Act of 1984 is amended by the insertion of the following section after section 19:<\/p>\n<p>\u201c19A.\u2014 (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused\u2014<\/p>\n<p>(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda S\u00edoch\u00e1na in relation to the offence, or<\/p>\n<p>(b) when being charged with the offence or informed by a member of the Garda S\u00edoch\u00e1na that he or she might be prosecuted for it,<\/p>\n<p>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\u2019s 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.<\/p>\n<p>(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.<\/p>\n<p>(3) Subsection (1) shall not have effect unless\u2014<\/p>\n<p>(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<\/p>\n<p>(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure occurred.<\/p>\n<p>(4) Nothing in this section shall, in any proceedings\u2014<\/p>\n<p>(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<\/p>\n<p>(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.<\/p>\n<p>(5) The court (or, subject to the judge\u2019s 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.<\/p>\n<p>(6) This section shall not apply in relation to the questioning of a person by a member of the Garda S\u00edoch\u00e1na unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(9) In this section \u2018arrestable offence\u2019 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.\u201d.<\/p>\n<h4>Amendment of section 2 of Offences Against the State (Amendment) Act 1998.<\/h4>\n<p>31.\u2014 (1) Section 2 of the Offences Against the State (Amendment) Act 1998 is amended\u2014<\/p>\n<p>(a) in subsection (1), by\u2014<\/p>\n<p>(i) the substitution of \u201cin determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967\u201d for \u201cin determining whether to send forward the accused for trial\u201d, and<\/p>\n<p>(ii) the substitution of \u201ca person shall not be convicted of the offence solely or mainly on an inference drawn from such a failure\u201d for \u201ca person shall not be convicted of the offence solely on an inference drawn from such a failure\u201d,<\/p>\n<p>(b) by the substitution of the following subsection for subsection (2):<\/p>\n<p>\u201c(2) Subsection (1) shall not have effect unless\u2014<\/p>\n<p>(a) the accused was told in ordinary language when being questioned what the effect of such a failure might be, and<\/p>\n<p>(b) the accused was afforded a reasonable opportunity to consult a solicitor before such a failure occurred.\u201d,<\/p>\n<p>and<\/p>\n<p>(c) by the insertion of the following subsections after subsection (3):<\/p>\n<p>\u201c(3A) The court (or, subject to the judge\u2019s 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.<\/p>\n<p>(3B) This section shall not apply in relation to the questioning of a person by a member of the Garda S\u00edoch\u00e1na unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.<\/p>\n<p>(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.\u201d.<\/p>\n<p>(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.<\/p>\n<h4>Regulations.<\/h4>\n<p>32.\u2014 (1) The Minister may make regulations providing for the administration of cautions by members of the Garda S\u00edoch\u00e1na to persons in relation to offences.<\/p>\n<p>(2) The regulations may include provision for\u2014<\/p>\n<p>(a) the form of caution to be administered to a person\u2014<\/p>\n<p>(i) at any time before the person is charged with an offence, on being questioned by a member of the Garda S\u00edoch\u00e1na in relation to the offence,<\/p>\n<p>(ii) when the person is being charged with an offence or informed by a member of the Garda S\u00edoch\u00e1na that he or she might be prosecuted for it, or<\/p>\n<p>(iii) in any other circumstances in which a caution is required, and<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(4) A failure on the part of any member of the Garda S\u00edoch\u00e1na 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.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-27285\" data-postid=\"27285\" class=\"themify_builder_content themify_builder_content-27285 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Background &amp; Overview Historically, the right to silence was a fundamental aspect of the criminal process.\u00a0 One aspect was the common law privilege against self-incrimination.\u00a0 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 [&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":[69],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/27285"}],"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=27285"}],"version-history":[{"count":12,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/27285\/revisions"}],"predecessor-version":[{"id":33843,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/27285\/revisions\/33843"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=27285"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=27285"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=27285"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}