Right to silence in criminal cases
Bunreacht na hÉireann, (the Irish Constitution) provides protection for everyone in Ireland against self-incrimination. That is, making a statement that might now or later expose you to criminal proceedings.
There is also a constitutional guarantee, that every person accused of a criminal offence in Ireland is innocent until proven guilty. When you are charged by the Gardaí with a criminal offence, the responsibility of proving your guilt lies with the prosecution. Therefore, no responsibility lies with you, the accused, to prove your innocence. There are however two exceptions to this principle:
- Where the particular law places a requirement on the accused who raises a statutory defence to prove this defence. (For example, where you are charged with possession of drugs and the prosecution proved that you actually had the drugs. It is then a legal requirement for you to prove that you did not know that they were drugs. Otherwise you may be convicted).
- Where you offer a defence of insanity or diminished responsibility. It is then up to you to prove your insanity or diminished responsibility and this is not a proof that rests with the prosecution.
The privilege against self-incrimination and the right to silence go hand in hand. They are also closely related to the presumption of innocence. As the responsibility is placed on the prosecution to prove the guilt of a person it follows that the accused should not be forced to assist the prosecution by being forced to speak.
Your right to silence in Garda custody
If you are arrested and brought to a Garda station, there is an obligation on the arresting Garda to inform you of your general right to remain silent during questioning. This is done by way of a caution. The caution states “You are not obliged to say anything unless you wish to do so but anything you say may be taken down in writing and may be used in evidence”. This is a clear indication of the right to silence enjoyed in most cases by an arrested person in Garda custody.
It has been accepted in the courts in Heaney v Ireland that the right to silence is contained in the Irish Constitution. The High Court judge in that case was of the view that the fairness of a criminal trial could be damaged by events that took place prior to it. That includes the issue as to whether or not a person being interviewed by the Gardaí, before being charged, was afforded his or her right to silence. If not, then the trial could be compromised and thus would be in breach of Article 38.1 of the Constitution.
On appeal, the Supreme Court affirmed the right to silence in police custody as having a constitutional status. However, the Supreme Court also indicated that the constitutional right to silence applied to anything that might offer the police evidence, which was self-incriminating. In other words, the constitutional right to silence may not extend to not answering police questions that would not involve self-incrimination such as providing your name and address when asked or providing your date of birth or nationality when asked as this information would not normally be self-incriminating.
The right to silence and privilege against self-incrimination in Ireland is not an absolute right. However, in the vast majority of criminal offences this right does apply. When you are accused of a criminal offence you enjoy the right to silence unless you are informed by the Gardaí that the particular offence for which you are arrested places a certain obligation on you as discussed below. The Gardaí must also inform you of the consequences if you fail to comply.
If there is no statutory exception to the general rule, the fact that you exercised your right to silence while in custody should not be referred to at any later trial.
Your right to silence at trial
Bunreacht na hÉireann also recognises the absolute right for someone accused of a criminal offence to refuse to testify. This right arises from Article 38.1 of the Constitution.
If you decide to testify, or give evidence, then you waive that right and you must answer questions put to you by the prosecution, and cannot refuse to do so on the basis that the answers would incriminate you.
Consequences at trial of remaining silent
There are two areas where the law in Ireland impinges on your privilege against self-incrimination and your right to silence:
Questions that allows inferences to be drawn at your trial from your failure to answer certain questions or to provide certain information and
Offences where it is a criminal offence not to answer certain questions or to provide certain information.
It is important to note that these provisions do not only operate when you are in custody, but they also apply if you are not in Garda custody at the time you are asked the questions.
Inferences to be drawn in certain circumstances
Under the Criminal Justice Act 1984 as amended by Part 4 of the Criminal Justice Act 2007 inferences can be drawn from your silence in certain circumstances in any proceedings against you for an arrestable offence. An arrestable offence is an offence for which a person can be imprisoned for 5 years or more.
Inferences can be drawn, if at anytime before being charged or when you are charged, or when informed by a Garda that you may be prosecuted for the offence, you fail or refuse to account for any object, substance or mark on your person, clothing or in your possession or in any place in which you were when questioned by a Garda. Similarly, inferences can be drawn if you fail or refuse to account for your presence at a particular place around the time the offence was committed. The Garda has to have a reasonable belief that the presence of the object, substance or mark, or your presence at the place, has a relevance to your involvement in the offence which is believed to have been committed.
Inferences may also be drawn if you fail to mention any fact which you then rely on in your defence during the proceedings and which, in the circumstances existing at the time, you could reasonably have been expected to mention when being questioned or charged.
It is not an offence to fail or refuse to answer such questions. However, the court or jury can take into consideration (when deciding on your guilt or innocence) the fact that you had failed or refused to answer the questions when asked by the Gardaí. If there is no other evidence put to the court or jury then they cannot convict you on the failure or refusal to answer questions alone. It can only be used to strengthen other evidence presented to the court or jury in the case. It also cannot be used unless the Garda informed you in ordinary, clear, understandable, language what the effect of a failure or refusal might be and you were given a reasonable opportunity to consult a solicitor. The questioning must be recorded electronically or you must consent in writing to it not being recorded.
Similarly, under the Criminal Justice Act 2006, as amended by the Criminal Justice (Amendment) Act 2009, inferences may be drawn as the result of the failure, in particular circumstances, to answer questions. This applies to the organised crime offences under Part 7 of the Act.
European Convention for the Protection of Human Rights and Fundamental Freedoms
The European Court of Human Rights in John Murray-v-United Kingdom (1996) 22E.H.R.R.29 has considered the issue of adverse inferences and whether or not this is compatible with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which guarantees the individual a right to a fair trial. The Court ruled that it would be incompatible with the right to silence if a conviction were based solely on the accused’s failure or refusal to answer police questions. It did, however accept the legality of taking an accused’s failure or refusal to answer questions into account in considering the weight or persuasiveness of the prosecution evidence. The Court also said that a number of factors would have to be considered in deciding whether or not adverse inferences were in line with the European convention for the Protection of Human Rights and Fundamental Freedoms. Chief among these were:
- Whether or not the appropriate warnings had been given to the accused as to the effect of remaining silent
- Whether the accused understood such warnings
- Whether or not the accused had access to legal advice
- The fairness and reasonableness of the inference which were actually drawn by the court
Offence of not answering questions
The second area that impinges on your privilege against self-incrimination and your right to silence is that which makes it an offence if you fail to answer certain questions or to provide certain information. The most important piece of criminal law in Ireland in this regard is the Offences Against the State Act 1939. The greatest powers given to the Gardai are in this piece of law.
Section 52 of the Offences against the State Act 1939 obliges you if detained under Section 30 of the Act to answer certain questions concerning your movements and actions and your knowledge concerning the commission of any offence under the Act. Before requesting this information, the Garda must inform you that the request is being made under section 52 of the Act. You must then be informed of the consequences of a failure or refusal to comply with the request, that is, you are committing an offence. The Garda must explain this in clear, ordinary and understandable language.
The European Court of Human Rights in Quinn-v-Ireland (2001) 33 E.H.R.R.264, while acknowledging that the right to silence and the right not to incriminate oneself as laid out in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was not an absolute right, it felt that section 52 went further than was necessary to meet the needs of the state. However, it seems from more recent decisions of the courts in Ireland that once any such evidence relating to a failure or refusal under section 52 is not used in the prosecution case against the accused then it will be accepted by the courts. In other words, the evidence of failure or refusal can only be given when prosecuting an accused for an offence under section 52.