Statements from suspects
The right to silence and the right not to incriminate oneself are generally recognised international standards in law. Article 38.1 of Bunreacht na hÉireann (the Constitution of Ireland) and Article 6 of the European Convention on Human Rights both protect citizens against being forced to make statements which result in admissions of guilt. The following words must be spoken by the Gardaí before they are allowed to take a statement from a suspect:
“You are not obliged to say anything unless you wish to do so, but anything you say will be taken down in writing and may be given in evidence.”
Are there rules covering the taking of statements?
Yes. The rules that cover the taking of statements from suspects are called the Judges’ Rules. Originally drawn up in 1912, they are a guide for the Gardaí when investigating a crime, to ensure that suspects are treated fairly. The Judges' Rules do not have the force of law, however, any statement taken from a suspect, in a way which breaks these rules, is likely to be rejected by a judge conducting a criminal trial.
A very important difference between a statement being made involuntarily and a statement taken in breach of the Judges’ Rules is that, while an involuntary statement must be excluded in a trial, the statement taken in contravention of the Judges’ Rules can be allowed by the judge (if he/she decides). In other words, the judge has discretion to include or exclude statements in this regard.
While there are nine rules, the main purpose of them is to ensure that any suspect who is going to make a statement to the Gardaí must be informed of their right to silence by way of the caution.
If you make a statement to the Gardaí and the caution is given to you by the Gardaí before the statement is taken, then the contents of the statement can be used in any court case or trial that results. Often, a statement by a suspect is a confession admitting his/her part in a crime. If you make a confession in a statement, then the courts look very closely at the circumstances which surrounded the taking of the statement of confession.
The most important issue that surrounds a written confession (or statement) is the voluntariness of the confession. Confessions (whether oral or in writing), made by a suspect before a trial or court case can only be proved against the suspect if they were free and voluntary. To be free and voluntary a confession must not be influenced by hope or fear, in the form of a threat, promise or inducement. Any such statement of confession by a suspect will be held to be an involuntary confession.
How will the court know if a statement is involuntary?
Broadly speaking, anything that suggests to you that your position in relation to the crime would be better if you made a statement of confession (or worse if you did not), renders such a statement potentially inadmissible, because it was involuntary.
Over the years, the courts have taken a very strict line on anything that could constitute an inducement, threat or promise. The test presently applies by the courts is:
- Were the words used by the person in authority, objectively viewed, capable of being a threat or inducement?
- Did the accused understand them as a threat or inducement?
- Was the statement in fact the result of a threat or inducement?
All three questions must be answered yes for the statement to be considered involuntary.
The Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997 (as amended) provides for the electronic recording of certain interviews in Garda stations. If you are detained in a Garda station after arrest under the provisions of:
- Section 30 of the Offences Against the State Act 1939
- Section 4 of the Criminal Justice Act 1984
- Section 2 of the Criminal Justice (Drug Trafficking) Act 1996
- Section 42 of the Criminal Justice Act 1999
- Section 50 of the Criminal Justice Act 2007
- Section 16 or 17 of the Criminal Procedure Act 2010
your interview with the Gardaí must be electronically recorded, if the necessary equipment is present in the station. You can read more about about detention after arrest here.
For the courts and the suspect, it provides them with proof as to whether or not statements were made voluntarily. It has also almost eliminated the practice of suspects making complaints and allegations of Garda abuse and allegations that they were forced into making involuntary statements.
What is the procedure for taking statements from suspects?
If you decide to make a statement, the Gardaí have to issue the caution informing you of your right to remain silent. This caution must be included at the top line of the written statement. The contents of the statement are then written down, either by you or by the Gardaí. Normally this is done by the Gardaí, but you are allowed to write the statement if you wish.
In the process of taking down your statement, the Gardaí cannot cross examine you. They are allowed to ask you questions in order to clarify anything you say which is unclear. When you are finished giving your statement the Gardaí either read out the statement to you, or invite you to read the statement yourself.
The Gardaí then invite you to make any alterations or additions to the statement if you wish to do so. This fact is recorded at the end of the statement in the following way.
“This statement has been read over to (or by) me, and I have been invited to make any corrections thought necessary in it.
It is correct”.
Finally, the Gardaí ask you to sign the statement. The signature should be written on the next available line and should be witnessed by those present. In the case of a juvenile, the signature should also be witnessed by a parent, adult relative or guardian.
If you refuse to sign the statement the Gardaí insert the words “Declined to sign” and the reasons for refusing are also included. In the case of an illiterate suspect (that is, someone who cannot read or write), he/she is asked to make a mark in place of a signature.
Can a suspect get a copy of the statement?
If you make a statement to the Gardaí you are entitled to a copy of the statement free of charge. If you engage a solicitor after making your statement, then your solicitor is entitled to a copy of the statement free of charge.
If you make a statement to the Gardaí and it is electronically recorded then you or your solicitor is entitled to a copy of the electronic recording. There is no fee for this tape.
If another person has been charged with the same offence and his/her statement has been taken separately, the Gardaí should not read this statement to you. You should however, be given a copy of the statement and the Gardaí should say nothing that would invite a reply.