(Limerick East): First of all, it is worth mentioning the general position at the moment. If we did not have these sections the jury could not infer guilt from silence. Take for example the failure to explain something like a bloodstain on a jacket or shirt. The prosecution could not at the moment comment on that. These sections will now allow an inference to be drawn legally. At the moment a jury might draw an inference as a matter of common sense but there is an obligation on the judge to direct them not to draw such an inference and the prosecution cannot comment at all. To take a specific example, somebody is arrested who has bloodstains on his shirt. He gives no explanation for that to the garda. The garda giving evidence can mention the fact that the accused gave no explanation for the bloodstains but the prosecution cannot comment on that and the judge must instruct the jury not to draw an adverse inference from that fact. A judge could frequently be obliged to direct a jury to act against their common sense. It is difficult to know how juries come to decisions in any particular case but there must be tremendous pressure on ordinary citizens to draw an adverse inference at the moment. I would go so far as to say that they probably frequently do so but if they do, they do so against the express directions of the judge.
These sections will allow what I consider is a matter of commonsense to be legal. Section 17 allows a jury to draw an inference and, in practice, it will be an adverse rather than a benign inference. It will be an inference of guilt from the failure or refusal of an accused to account, when asked by a garda, for objects, substances or marks found on his clothing or footwear or otherwise in his possession, or at any place where he was arrested. It applies in specific circumstances as follows: The person must have been arrested without warrant on reasonable suspicion of having committed an offence so it can only arise subsequent to arrest. Any failure to explain marks and so forth in response to questions asked before arrest will not give rise to inferences under this section. Inferences can only arise subsequent to the Garda exercising the power which they have at the moment to arrest without warrant.
Secondly, the arresting garda must reasonably believe that the presence, object or mark is attributable to the person's participation in the offence for which he was arrested. The reasonableness of the garda's belief is an objective test. Again, it would be open to the court as I said previously, to review it. However, in this particular instance it is the judge in court who will decide whether it is proper to draw an inference or not. So, the reasonableness or otherwise of the garda's belief would be a matter which the judge would have to take into account.
Thirdly, the garda must inform the person of his belief and request him to account for the object, mark or whatever. Only a proper inference can be drawn and in this regard the jury are subject to the directions of the trial judge as to what would or what would not be proper. A person cannot be convicted solely on the basis of an inference drawn from failure or refusal to give an explanation. If the adverse inference is the evidence, a person cannot be convicted on it. It can add to the sum total of material evidence. What a jury decide on when they look at the wholecorpus of evidence and what particular aspect of that evidence weighs heavily, or most heavily, with them is impossible to say. I presume that they look at the whole corpus of evidence and it is the weight of the accumulation of parts which decides them. This would be another piece of evidence, but nobody could be convicted on inference alone.
Subsection (2) applies the section to the condition of clothing or footwear as it applies to a substance or a mark. This would arise, for example, where the clothing was very wet without being stained. Obviously, in certain crime situations an inference could be drawn from somebody who is all wet but it would not necessarily constitute a stain. It is to cover that kind of situation. Subsection (3) requires that the accused be told in ordinary language what the effect of his refusal might be. This involves a change in the caution because it has to be done in ordinary language.
Deputy Woods asked about subsection (4). It is a saver for existing law under which an adverse inference could be drawn in an appropriate case from the failure or refusal of an accused to give an explanation about an object in his possession or some mark on his clothing to some person when asked to account for it. For example, where an employer has asked an employee for an explanation for his unauthorised possession of some item of the employer's property or where a member of the accused's family asks him where he got a particular bloodstain.
There is a reference here I would like to read into the record. It is Lord Goddard, CJ giving the judgment of the Court of Appeal inR v. Aves 1950, who said:
Where the only evidence is that an accused person is in possession of property recently stolen, a jury may infer guilty knowledge (a) if he offers no explanation to account for his possession or, (b), if the jury are satisfied that the explanation he does offer is untrue.
That particular judgment is the reason for subsection (4) because there are limited circumstances in the case of an accused person in possession of property recently stolen, this being the only evidence, where an inference can be drawn at the moment under existing case law. Subsection (4) is to preserve that.
Section 18 is a provision of a similar nature. Subsection (1) allows the drawing of appropriate inferences by a court or jury from failure or refusal of an accused to account for his presence at a particular place at or about the time of an offence for which he was arrested without warrant. Paragraph (a) of subsection (1) makes it clear that the arresting garda must have found the person in the particular place at or about the time the offence was committed.
Paragraph (b) requires that the arresting garda must reasonably believe that the person's presence in the place is attributable to his participation in the commission of the offence. Under paragraph (c) he must inform the person of his belief and ask him to explain his presence in the particular place. Again, as in section 17, it will be a matter for the trial judge to direct the jury as to what inference, if any, may be drawn from the failure or refusal of an accused to account for his presence there. Subsection (2) provides that the accused must be told by the arresting garda in ordinary language, when he is asked to account for his presence, what the effect of failing to do so might be. Subsections (3) and (4) are similar to subsections (4) and (5) of section 17.
Before I go on to the amendments proposed by Deputy Woods I would like to read something for the benefit of the House. It is the O Briain Report again, which we have referred to frequently, and it is the chairman's addendum, Barra Ó Briain, giving his views on matters which his colleagues felt did not lie within the committee's terms of reference but which Barra Ó Briain felt he wanted to comment on. It is on page 23, the last paragraph of his addendum. He dealt with the concept of the period of detention for questioning and he went on to say:
A second matter, related to the foregoing, is whether or not a suspect should continue to have the absolute right to remain silent in all cases. At present, there is no legal obligation to give information to the Garda, apart from certain statutory exceptions. No adverse inference may be drawn by any jury from such silence. The prosecution may not even comment on it. This rule as it stands has been criticised by several very distinguished judges in England, and by well-known teachers of law and authors. In England, in June, 1972, the Criminal Law Revision Committee, after considering the matter for eight years, advocated the abolition of the right of silence as it hitherto existed. The British section of the International Commission of Jurists chaired by Sir John Foster, QC, MP was of the opinion that the privilege of the accused to keep silent before his trial should be abolished. The Lord Chief Justice of England, Lord Widgery, has expressed the view that the right to remain silent should be modified. So has Professor Rupert Cross of Oxford University. Professor Glanville Williams has expressed the view that changes in the law must include the abandonment of the present entitlement of a suspected or accused person to take no part whatsoever in the establishment of the truth. This right of silence can be no less frustrating to gardaí, honestly and dutifully investigating a crime, than the prohibition on holding suspects for the purpose of questioning them. Like risks of ill-treatment of persons in custody are involved. I would favour lessening this risk of ill-treatment in the interests of both suspects and gardaí. I consider that this rule of law should be somewhat modified and that a suspect should be required to answer certain questions. A refusal or failure to do so might be made the subject of comment by the judge at the trial and/or by the Prosecution with the leave of the trial judge. The jury should be told to draw what inference they think proper and commonsense from a refusal to answer all or any such questions. Such questions might relate to identity and address, marital status, explanation of stains on clothing, property (including money) found upon the suspect, an account of his dealings with a vehicle believed by the gardaí to have been used in a crime, his movements for a specified period of time before and after the crime, and some other kindred questions to be set out in a statute and strictly limited. Outside of such matters the suspected person would retain his right of silence, as at present, quite unimpaired.
Barra Ó Briain signs his addendum. This is what is being suggested here in an even more limited way than Barra Ó Briain has recommended.
On the amendments proposed by Deputy Woods the effect of both amendments is to prevent an inference being drawn from, as the case may be, objects, marks on an arrested person or from his presence at a particular place at or about the time the offence in question is alleged to have been committed. The section, if amended as proposed, would simply provide that any such failure or refusal to account for these objects might be given in evidence against the accused where the failure or the refusal was material. The problem is that is the present law and there is nothing to prevent the arresting garda from saying that he asked the accused to account for an object and he failed or refused to do so. No inference can be drawn from the failure or the refusal, so the proposed amendment would leave the law unchanged in effect. The amendment would nullify the efficacy of both sections. On that basis, subsections (4) and (5) would also be pointless, although the amendment does not propose to delete them.
The sections are justified on the basis that it is no more than commonsense and that an inference should be drawn from a failure or refusal to account for say, a blood stain or one's presence at the scene of a crime. In deciding whether an inference should be drawn, the jury will be guided by the judge's directions. There is no question of somebody being pulled in just because he happened to be near the scene of a crime. The person must be reasonably suspected of the offence before he can be arrested. The reasonableness of the suspicion must be investigated by the courts.
Since somebody cannot be found guilty solely on the basis of an inference, before he will be brought before a court there must be other evidence. The argument that this is casting the net too wide and that people who simply happen to be near the scene of a crime can be arrested and brought to the courts and sent to prison does not stand up because an inference on its own cannot possibly convict a person. Secondly the person must be reasonably suspected of the offence before he can be arrested. The courts are certainly competent to decide that in this instance, whatever arguments we have had about reasonableness previously.
Since the exercise of the test of reasonableness here will be carried out by the judge who is sitting at the trial, I do not see any problem with that. If the judge's assessment is that the suspicion was not reasonably based, there is the possibility of an action for false imprisonment. Again the arguments advanced by some people against section 3 are not relevant because somebody would be in court and it would be for a judge to decide in this instance.
As well as that, before an inference can be drawn a member of the Garda Síochána must reasonably believe that the presence of the object, the mark, or whatever, may be attributable to the participation of the arrested person in the commission of the offence in question. Again there must be a reasonable belief linking the object or the mark with the offence. This can be tested objectively. The arresting garda must tell the accused in ordinary language and, as I said, this will involve a change in the caution which is being administered.
Deputy Woods raised quite a number of specific points. I think I have dealt with most of them. He referred to the possibility of having some mechanism whereby the Garda would be required to give some form of documentation. I think his idea was that the person being questioned should be provided with some documentary evidence of the questioning and of the questions asked. That would be a very difficult procedure. For example, the questioning is most likely to take place immediately after arrest rather than in a Garda station. If somebody is arrested on reasonable suspicion of having been involved in a crime, and he is at the scene of the crime, questioning could occur straight away. If somebody has an object in his possession, tools for breaking and entering, for example, which might be associated with the crime, questioning could arise almost immediately. It would be very difficult to administer that.
I can see the difficulty to which the Deputy has referred. I will examine whether the regulations, without being too complicated about it, could provide for the evidence to be recorded. The amendments proposed by Deputy Woods have the effect of cancelling the sections. Rather than amending the section the sections would be of no benefit whatever if the amendments were accepted.