Vol. 454 No. 2
6 Mr. D. Ahern asked the Minister for Justice the plans, if any, she has end the unqualified right to silence of crime suspects; if she will consider introducing legislation to provide that a judge or jury should be entitled to draw an inference where a crime suspect refuses to answer certain questions put to them by gardaí during questioning; and if she will make a statement on the matter. [9631/95]
While under our criminal law the general rule is that a person is not required to answer any questions in connection with an offence of which they are suspected, it is not correct to say there is an unqualified right to silence. The general rule — which is in line with a general constitutional protection against self-incrimination — is subject to a number of statutory exceptions.
The most recent of these were included in the Criminal Justice Act, 1984. Sections 18 and 19 of that Act allow a court or jury to draw inferences from an accused's failure or refusal in the course of Garda questioning to account for certain matters: marks on his or her person or clothing or presence in the vicinity of a crime. These inferences cannot be drawn unless the accused was told in ordinary language what the effect of failing or refusing to provide the relevant information might be. While inferences can be treated as amounting to corroboration of other evidence the Act specifically provides that they cannot alone form the basis of a conviction.
The House will appreciate that in this area of our law conflicting and competing rights are at issue. On the one hand, it is argued that the right to silence is an old and very important protection of a suspect's rights and that its removal could place in jeopardy those innocent of any crime. On the other hand, the concerns which have been increasingly expressed in recent times to the effect that the present situation helps those involved in very serious crimes to avoid conviction require that at the very least the law in this area is constantly kept under review in the light of changes that have taken place in the nature of crime and the nature of society.
It is only right to sound a note of caution in relation to any possible change in the law in this area: there are clear limits to what any such changes could achieve. In particular, it is difficult to imagine any change in the law in this area which would not continue to provide that inferences from silence alone are not a sufficient basis for a conviction. In other words other evidence linking the suspect to the crime would also have to be available. I mentioned this not to indicate any unwillingness on my part to consider further changes in the law in this area but to emphasise that we should be realistic about what such changes might achieve.
No one in this House would accept that on silence alone should a person be convicted. Is the Minister aware of views expressed by certain members of the Judiciary, during the past few months, on the right to silence? In effect they have made public statements from the Bench in regard to the more or less unqualified right to silence and have exhorted us to make changes. Will the Minister say whether, in any of the communications or meetings she has with the Judiciary from time to time, they have expressed this view?
The Deputy may be referring to comments made by a retired Circuit Court Judge——
And others.
——in an article on 16 April 1994. The Garda Commissioner also talked about this in an article in The Irish Times in September 1994 in which he queried the effectiveness of Garda questioning of suspects where they must first tell suspects that they have a right to silence. He has made some suggestions which will be included in my review of the law on the right to silence. In my meetings with the judges to date I cannot recall that any of them specifically raised that issue, because it was not the reason for my meeting them. I am aware that a number of judges feel the right to silence should be restricted and it is possible to make changes in the right to silence that would not interfere with a person's constitutional right not to incriminate himself but would ensure that hardened criminals do not use this right to avoid prosecution. We must also get other evidence to prosecute them but it is an area I am keeping under review.
Will the Minister accept there is a public outcry about drug trafficking and the fact that drug traffickers are not being apprehended? In this respect will she accept that for certain scheduled serious offences, such as drug trafficking, the time has come to allow silence as corroboration in a criminal trial.
The Deputy is injecting new matter into the question.
I share the Deputy's concerns and I have expressed them here and outside the House about the scale and type of crime being witnessed in our society, not just in the past six months but in the past five to ten years because of the abuse of drugs. I intend to present comprehensive proposals to the Government shortly to ensure that criminals will not be able to get away with flouting the law because they have the money to buy the best advice and because they are never found anywhere near the scene of a crime although they are pulling the strings. The proposals I will present would not have been considered acceptable up to a few years ago but are now needed to tackle the crimes committed by the drug barons and other major criminals in society.
Does the Minister accept that it is most unhelpful — all of us commit this sin — to use the term "right to silence"? No one is suggesting that a person should be tortured to extract answers. It is legal fiction that silence cannot give rise to an inference or that the failure of the accused to give evidence at his own trial cannot be held against him. Does the Minister accept that there has been a dramatic change in the public's perception of this issue? Will she look at the reports of the English Criminal Law Reform Committee in which some interesting proposals are made? It suggested that an accused person should be made liable to testify at his own trial and that a jury should be allowed to draw an adverse inference if he fails to do so. As it is most unsatisfactory to be told that a matter is under constant review and that there will be developments shortly, will the Minister outline the timeframe within which proposals will be presented?
I agree there has been a dramatic change in the public's perception of some of these issues, including the right to silence and bail. Heretofore it would not have been envisaged that the mood of the public would change, that these would prove damaging rather than protect innocent people. The Deputy, who is a lawyer, rightly said that inferences may be drawn if a person remains silent or fails or refuses to account for marks on the person or clothing or their presence at the scene of a crime. However, further corroborating evidence is required. While the mood of the public may have changed they would not accept that a person who remains silent should be prosecuted where there is no corroborating evidence. Therefore, we must strike a balance in restricting the right to silence.
The changes proposed in England are being examined in the Department. The Garda Commissioner has suggested that a procedure could be introduced whereby suspects would be subject to cross-examination by an independent person. In a Bill introduced in 1994, either by the Deputy or Deputy O'Donnell, the Progressive Democrats suggested that this could be done in the District Court.
I cannot outline a timescale within which I will present proposals to the Government. A number of issues are being examined and I hope to bring this examination to finality very soon.
Will the Minister outline a target timeframe?
No; the Deputy will only throw it in my face later.
I am concerned about the lack of progress at Question Time today, it is very slow.
I wish the Minister well in her deliberations on this delicate and sensitive issue. I am convinced that she is determined to present a satisfactory set of proposals. While we are all conscious that well known criminals, including the General, and terrorists pick a spot on the wall and say nothing and thereby avoid justice there is a necessity to strike a balance. Is the Minister aware that a candidate in the forthcoming Wicklow by-election did not want to say anything and was ultimately paid in excess of £500,000 by the State in compensation? I am referring to Nicky Kelly who made statements that he did not want to make——
I am concerned about references to a person outside the House.
There is a need to strike a delicate balance as there is a difference between the activities of criminals, such as the General, and terrorists and others such as the candidate to whom I have referred in the forthcoming Wicklow by-election.
The reference to a person outside the House should not have been made.
I will not refer to any person outside the House. I agree with the Deputy that we need to strike the right balance. Under the legislation introduced in 1983 or 1984 inferences may be drawn where a person refuses to account for their presence at the scene of a crime, or for marks on the person, or clothing. That legislation was the subject of a lively debate and amendments were made thereto. Some Members were concerned that we were going too far in restricting the right to silence. However, we have come a long way since then. The public would now like to see some changes but we must strike a balance to protect innocent people who, for one reason or another, do not wish to speak while being questioned or where there is some impediment which prevents them from doing so.
The Deputy mentioned that well known criminals pick a spot on the wall and remain silent while being questioned by the Garda. They could teach us much about the law as they have access to the best legal brains in the country.
Given Deputy Byrne's remarks Democratic Left will not get too many transfers in Wicklow from a particular candidate.
Is the Deputy hoping to get them?
Does the Minister accept that criminals can evade justice by picking a spot on the wall and remaining silent while being interrogated by the Garda? Does she further accept that the time has come for her to introduce a package of measures to address these issues?
I will introduce a package of measures which will work when they have been properly and effectively devised. It has been a long held principle in our justice system that a person has the right to silence.
We have been tampering with its since 1984.
It is not today or yesterday that people began to refer to the need to restrict this right.
What prompted the Government to make changes in 1984?
If the matter was as simple as the Deputy suggests I am sure that this would have been done by my predecessor and his colleague, Deputy Geoghegan-Quinn. I am preparing a package of measures for presentation to the Government to tackle the changing crime patterns and those criminals who fear nothing. The package of measures I will present to Government——
When?
——will command the respect of this House and people outside. Previous Ministers did not have the courage to introduce such a package.
The only reason the Minister is doing so is that we are pushing her into it.
We need to strike the right balance in the judicial system. Everybody must be involved, including this House and judges, in ensuring that these criminals are locked away. I mentioned the judges because it is they who implement the laws. Deputy McDowell knows from his own experience that it is necessary that the intent as well as the actual words of legislation be implemented.
