Dáil Éireann debate -
Wednesday, 17 Apr 1996

Vol. 464 No. 1

Written Answers. - Right to Silence.

Liam Fitzgerald

Question:

87 Mr. L. Fitzgerald asked the Minister for Justice if the right to silence in our criminal justice system is seriously undermining the best efforts of the Garda Síochána to successfully apprehend and prosecute crime lords and drug barons in our midst; and if she will make a statement on the matter. [7684/96]

Minister for Justice (Mrs. Owen)

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 he or she is suspected, it would not be correct to say that 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 Deputy will appreciate that in this area of our law conflicting and competing rights are at issue. For example, 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. While it is, of its nature, both difficult and speculative to draw conclusions as to how the outcome of a complex criminal investigation might have been different had a different factor entered into the equation — such as a more restricted right to silence — I am aware of 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. This requires 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 might also mention that a commission of experts which examined the question of the right to silence in a neighbouring jurisdiction concluded that there was no evidence to show conclusively that silence was used disproportionately by professional criminals; nor was there evidence to support the belief that silence in the police station led to an improved chance of acquittal.

I mention these points 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.

A further major consideration in this area is that there is a developing body of jurisprudence under the European Convention on Human Rights in relation to the proposition that the privilege against self-incrimination is an implicit element to the right to a fair trial guaranteed by Article 6 (1) of the convention and that this, in turn, has implications for the exercise of the right to silence. Some key cases in this area have recently been decided on or await to be decided at present which are likely to have implications for any legislative changes which might be proposed in this area. I am, of course, having the judgments in these cases fully examined as they become available.