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.