Section 8 (6) provides:
No acceptance by the defendant under this section that any payment or other reward was received by him in connection with drug trafficking carried on by him or another or that he has benefited from an offence other than a drug trafficking offence shall be admissible in evidence in any proceedings for an offence.
Why is that subsection being included? What is the thinking behind it?
That subsection is designed to encourage candour on the part of the defendant. It provides that his or her acceptance of any allegation that a payment or a reward was received in respect of drug tafficking or that he or she has benefited from other criminal activity shall not be admissible in evidence in a criminal prosecution.
What is the idea of that safeguard?
I have a question on section 8. It seems that to encourage candour on the part of the defendant what is envisaged is a promise of immunity from prosecution. Where the statement of the Director of Public Prosecutions is furnished to the defendant and the defendant is required by the court to comment on the statement, the defendant should be alerted first to the fact that failure to respond will have the consequences referred to in subsection (3). In other words, if he is silent the consequences referred to in subsection (3) will follow and under subsection (6), will not be admissible against him in any proceedings for an offence. Otherwise the candour which subsection (6) is designed to encourage will not be achieved and, anyway, it would be fundamentally unfair.
In other cases defendants are generally encouraged to recognise that they are not obliged to incriminate themselves. However, here the right to silence is changed. Normally one has a right to remain silent for fear of incriminating oneself. Therefore it would be important in procedural and practical terms that the defendant should be warned at the time the DPP statement is given and shown to him that the right to be silent which normally applies in criminal cases does not apply here and that certain assumptions will in fact be made, in other words, if a person remains silent all sorts of assumptions will be made by virtue of that silence. The defendant would have to be warned by the court of this fundamental change in the law relating to the right to silence. What is the Minister's response to that change?
There is a precedent.
I can look at the point made by the Deputy although it would probably be more appropriate to the Rules of Court rather than to the Bill itself. In relation to Deputy Mitchell's point, I regret not being able to get back to him immediately, but there is a similar provision in the Criminal Justice Act, 1984, which is basically to encourage somebody to be co-operative at the time. That means that any information they give in a co-operative way in connection with the case under prosecution at the time cannot be used in a subsequent case against them. In other words, if they come forward voluntarily with the information in the first case, the probability is — we would hope it would be — that they would do the same in a subsequent case if there were one.
