Constitutional - Right To Trial In Due Course Of Law (Right To Silence)

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Right to Silence - General

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Number of discrete elements:

(a) Right of an accused not to give evidence at his trial;

(b) Right of a suspect to remain silent while being questioned;

(c) Right of a witness not to answer any question which would incriminate them.

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Article 38.1

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No person shall be tried on any criminal charge save in due course of law

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Heaney -v- Ireland (1996)

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Arrested under s30 - s52 OASA makes it an offence not to account for one’s movements when arrested under s30. Punishable by up to 6 months in prison. HC found that the right to silence was protected by Art 38.1, but that it was not an absolute right and s52 was a proportionate restriction on that right.

SC also upheld constitutionality but located the right to silence in Art 40.6 – corollary of FoE. Noted that FoE is subject to public order and morality, these limitations also apply to right to silence. State was entitled to encroach on the right to silence in pursuit of its entitlement to maintain peace and order. But in this pursuit the constitutional rights of the citizen had to be interfered with as little as possible. So was s52 a greater restriction than necessary? B/c of its exceptional nature it was proportionate and s52 was constitutional.

It provided that it was an offence to fail to provide an account of one's movements where one was requested to do so by a Garda.

This applied only where one was arrested under the Act and, in this case, s 30 of the Act.

Costello J. in the High Court noted that:

It is not contested that what is commonly called a "right to silence" is conferred by the common law on suspects in custody.

What is in controversy is both the nature and scope of that right and, more importantly, whether the common law right has obtained constitutional protection.

He held that the right was so protected under Art 38.1 of the Constitution. He noted:

This case is of course concerned with the immunity conferred by law on a suspect in custody not with an accused on trial and it was submitted on behalf of the Attorney General that as this Article clearly relates to trials of persons on criminal charges and makes no mention of suspects in custody, the right to silence of a suspect cannot obtain protection from this Article. I think that is too restrictive a view of the Article.

The fairness of a trial may be compromised by what has happened prior to it and this is why, for example, evidence which has been obtained prior to the trial by improper means may vitiate the trial itself. It would follow, in my opinion, that if the right to silence of a suspect can properly be regarded as a basic requirement for our system of criminal justice then it would be protected by this Article.

As we have seen at many points so far, Costello J. held that the limitation on the right should be tested according to a proportionality test. He held, however, that s 52 was a proportionate limitation on the right, as the law afforded suspect protections which minimized the risk of a suspect wrongfully confessing to a crime and contained safeguards against the possible abuse of the power.

Costello J. then considered the host of protections still in existence under s 30 and held, effectively, that overall the s 30 arrestee was still "fine" notwithstanding the nature of s 52. It is arguable that this logic is a little odd. The "detriment" argument seems to be designed to say that "overall" the process to which the arrestee is subject has sufficient protections for his her rights. It remains, however, that the separate offence under s 52 effectively makes an offence of silence.

The Supreme Court, per O'Flaherty J., upheld the decision of the High Court:

The Court holds that the prima facie entitlement of citizens to take such a stand must yield to the right of the State to protect itself. A fortiori, the entitlement of those with something relevant to disclose concerning the commission of a crime to remain mute must be regarded as of a lesser order. The Court concludes that there is a proper proportionality in the provision between any infringement of the citizen's rights with the entitlement of the State to protect itself.

It is notable, too, that the Supreme Court viewed the right as protected as a corollary of the right to freely express one's convictions and opinions under Art 40.6.1.i.

The Court seemed to reason that nothing here affected the "due course" of a trial given that the s 52 offence was self-contained, i.e. the person would be convicted for failing to answer and there was no "due process" difficulty with trial and conviction of that offence. Rather, the fight was over the constitutionality of the offence itself

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People (DPP) -v- Finnerty (1999)

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Exercise of right not to testify cannot lead to any inference adverse to him being drawn by the court, and in the case of trial by jury the jury must be expressly so advised by the TJ.

FACTS: Rape charge – accused remained silent when questioned except for assertion that sex was consensual

HELD: Keane, J: It is not permissible to draw adverse inferences without express statutory provisions entitling the Court to draw such inferences.

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Heaney & McGuinness v Ireland (2001)

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ECtHR found that s52 did not constitute a restriction on the right to silence but rather the degree of compulsion destroyed the very essence of the accused’s privilege against self-incrimination and their right to remain silent, which is not justified by any emergency or consideration of public order. There was thus a breach of Art 6.

In Heaney & Mc Guinness v Ireland and Quinn v Ireland in 2000, the ECHR held that that Section 52 of the Offences Against the State Act, 1939, which made it an offence for someone arrested under the 1939 Act not to give an account of his/her movements “destroyed the very essence of [the] privilege against self-incrimination and [the] right to remain silent”.

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Adverse Inferences

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ss. 18 and 19 CJA 1984 (below for CJA 2007) – adverse inferences were able to be drawn from an accused’s failure to explain his possession of a particular object or his presence at a particular place.

S3 CJ(Forensic Evidence) Act 1990: refusal to provide samples for DNA testing.

S7 CJ(Drug Trafficking) Act 1996 and s5 OAS(A)A 1998: from failure to mention any fact while in custody which he later relies on for his defence.

Adverse inferences can only be drawn if permitted by statute: People (DPP) v Finnerty [2001]

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Rock v Ireland (1998)

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ss18 and 19 CJA 1984: Inferences from eg mark on clothes in absence of explanation. SC appeared to agree with HC in Heaney that right to silence comes from Art 38.1. Noted that the right was not absolute, and here the restriction was proportionate. Means to achieve the objective must be rationally connected to it, impair the right as little as possible and be such that effects on rights right proportionate – here yes. Within permissible range.

NOT an offence to remain Silent when questioned. Rather, adverse inferences could be drawn at trial from failures to explain various matters on arrest which the arresting Garda reasonably believes to be attributable to your involvement in the commission of the offence for which you were Arrested (Section 18), and adverse inferences could be drawn from failure to account for your presence at the scene (Section 19).

Took into account that the inference could not form the basis of a conviction in the absence of other evidence and that an inference adverse to the accused could only be drawn where the court deemed it proper to do so.

1.Person arrested for an Offence
2.Person remains silent when questioned about that offence
3.The questions are reasonably attributable to the person’s possible involvement in the commission of the offence that the Garda is investigating.

HELD: Supreme Court concluded that this was not a disproportionate incursion into the Right to Silence

(i)Courts would only take such inferences as were “Proper”

(ii)No Conviction could be based solely on the adverse inferences that were drawn at the Trial from your Silence

(iii)Proportionality Test applied was NOT Heaney Proportionality (which requires impairing the right as little as possible). Instead, Tuohy v Courtney proportionality test was applied:

Sections 18/19 were not “so contrary to reason and fairness as to constitute an unjust attack on Appellant’s Constitutional Rights”

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People (DPP) v Finnerty (2001)

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Adverse inferences can only be drawn if permitted by statute. Right to silence was a constitutional right. Jury could not draw inferences from refusal to answer Gardai’s questions unless Leg has so legislated.

Here charged with rape under s4 CJA 1984 and Pros highlighted to jury his silence while in Garda custody. CCA found no breach.

SC reversed. CJA 1984 provided for specific instances where adverse inferences could be drawn, it did not contain any general provision in this regard.

This meant that no general abridgment of the right to silence was intended to be effected where a person declined to answer questions put to him by Gardai.

Under no circumstances should any cross-exam by the Pros as to the refusal of the Dft during the course of his detention be permitted.

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Murray v UK (1996)

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Right to silence is not absolute and inferences may be drawn from silence, where refusal to answer questions clearly call for an explanation but could not base a conviction entirely on that.

Whether particular inferences breach, dependent on circumstances. Here the evidence did call for an explanation.

But the court went on to hold that there had been a breach of Art 6 as the applicant had been denied access to a solicitor for the first 48 hours of his detention. Court held that it was extremely important for a suspect who has been arrested under adverse-inference-drawing legislation to get access to legal advice at the initial stages of police interrogation.

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Averill v UK (2001)

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Court found that fact that the accused had been denied access to his solicitor for the first 24 hours of his detention was significant in determining whether adverse inferences should have been drawn.

Access to a lawyer should have been guaranteed to the applicant before interrogation began.

Ultimately here right to fair trial had not been breached. Considerable amount of other evidence which required an explanation.

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Re National Irish Bank Ltd (1999)

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the Supreme Court addressed the question as to whether legislation may validly require a person to answer questions which tend to incriminate him/her and the answers to which questions would be admissible in criminal proceedings against the individual.

In short, the Supreme Court held that "due course of law" would not tolerate a conviction based (even in part) on evidence obtained via compulsion from the accused person; what is objectionable, it was said, was:

"compelling a person to confess and then convicting him on the basis of his compelled confession".

HELD: Supreme Court addressed issue as to
-(i) whether Legislation could require a person to answer incriminating questions,
-(ii) the answers to which would be admissible in Criminal proceedings
-Supreme Court stated that the Constitution would not tolerate a conviction based on evidence obtained via compulsion
-What is objectionable was “compelling a person to confess and then convicting him on the basis of his compelled conviction”

Re NIB [1990]: S10 CA 1990 – required cooperation with inspectors. S18: an answer may be used in evidence against him. HC was satisfied that s10 abrogated a person’s privilege against self-incrimination. However, in line with the principles laid down in Heaney it was proportionate. It is a legitimate objective of the State and entirely in the public interest to lay bare frauds and dishonest stratagems. Where the only means of achieving this objective is to provide an investigative procedure without a right to silence, then can assert that restrictions imposed by s10 are no greater than necessary to enable the State to fulfil its constitutional obligations. SC upheld this decision, finding legislation not unconstitutional per se but re admissibility at a later criminal trial: it would be up to TJ to determine if should be excluded in interests of fairness and justice, particularly in light that compelled. (ECtHR juris – this now be doubted).

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Adverse Inferences under the Criminal Justice Act 2007

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CJA 2007: enters into force 1 July 2007. Allows for adverse inferences to be drawn from a failure to mention matters subsequently relied upon in their defence. (Simply advising a detainee to remain silent will no longer be best practice).

Will take some time for it to become apparent how changes will operate in practice.

2 principal changes made by CJA:
(i) Substantial redrafting of the existing inference drawing provisions in sections 18 and 19 CJA 1984: Allowed for the drawing of inferences from a failure to account for the accused’s presence at a place, or for objects or marks found on them or at a place where they were present. Rarely used. CJA 2007 likely to result in an increase in use of the sections.

- Now any garda and not just the arresting one may put the matters to the suspect.

- Matters that the suspect may be required to account for have been broadened. S 18 now covers the presence of any object, substance or mark, in any place where the suspect was during any specified time period and not just the place of arrest. Similarly s 19 now covers the accused’s presence at any particular place at or about the time of the offence, not just the place of arrest.

- Inferences may now only be drawn where the questioning is recorded, or where the accused has consented in writing to its not being recorded.

(ii) An extra section 19A has also been added: it provides that inferences may be drawn by the failure of the accused to mention any fact relied on in his defence. The effects of this section remain to be seen. Similar provisions, now repealed by this Act, only resulted in one reported case (DPP v Bowes), which merely reminded that the defence must trigger the provision by relying on facts.

There is a body of English and ECtHR authority on a similar provision in England that may be of assistance in interpreting s19A (although of course the Irish courts may interpret it differently).


England: broad interpretation of the concept of a fact relied upon in one’s defence:
- R v Webber: It incorporates a scenario where an accused does not give evidence but elicits matters from witnesses in order to put forward a specific and positive case.
- R v Betts and Hall and R v Daly: An admission or denial of an aspect of the Pros case may in some circumstance constitute a fact relied upon → Even if the accused is not putting forward any positive defence at trial, in some circumstance an inference may be drawn if he has failed to admit or deny certain matters at interview.

S18 and s19 must be formally invoked by the Gardaí when calling for an account. S19A is only triggered by the accused relying on a fact they have not mentioned before.

Effects: - In borderline cases, the giving or withholding of an account may be the difference between a Pros case being brought or not. Dilemma of contributing to a weak Pros case resulting in it being brought trial.

- Also may be beneficial to the accused: may enable him to adduce a defence at trial (through the questioning by the defence of the Gardaí regarding the statement given) without him actually giving evidence and having to face the danger of the Pros cross-examination.

In England the practice has developed of merely mentioning matters in a statement without answering questions – as long as the accused does not stray beyond its terms at trial, this will prevent the operation of the inference drawing provision (R v Knight). [Note: difficult if no notice of arrest, in Ireland (unlike in England) solicitor is not allowed read statement so up to accused to remember all]

To be presumed that this approach will be followed here, since as s19A restricts the recognised constitutional right to silence it must be construed strictly.

If solicitor gives advice to remain silent, evidence can be led as to the basis for the solicitor having given that advice and the jury is then asked to decide whether it was reasonable for the suspect to remain silent. Conflict decisions, but some authority (including ECtHR Condron v UK [2000]) that once this has occurred the accused may lose privilege and the solicitor can be cross-examined as to what the suspect told them.

Note that in DPP v Finnerty [1999] the SC held that statutory incursion on the right to silence was possible. ECtHR has also upheld (eg Condron).

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DPP -v- Bullman (2009)

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The applicant was charged before the Special Criminal Court on a single count of membership of an unlawful organisation, contrary to s.21 of the Offences Against the State Act 1939 . The applicant was arrested after a Garda surveillance operation had taken place at Heuston Station, Dublin, in February 2005. At approximately 3pm the applicant was standing at the front of Heuston Station carrying a small blue rucksack. A black jeep pulled up and the applicant got into the rear of same, which then drove towards the car park to the rear of the station. There were two other males in the jeep. Gardaí followed the jeep. At approximately 3.10pm, two Gardaí approached the vehicle and identified themselves. In the rear of the jeep was a blue holdall bag with a red box protruding from it. The box was subsequently found to contain a sum of £94,250. Prior to the surveillance operation, the Gardaí had been briefed that members of the IRA were to have a meeting at Heuston Station that afternoon, that one of the persons to be present was the applicant and that the meeting was to facilitate the transfer of money taken in the Northern Bank robbery of the previous December and that the money was concealed in a Daz washing powder box. The applicant was found guilty of membership of an unlawful organisation and sentenced to four years' imprisonment. The applicant sought leave to appeal his conviction on the grounds that he had been unlawfully arrested and detained at Heuston Station, that his right to silence had been infringed, that the trial judges had erred in drawing adverse inferences from answers given by the applicant and that the trial judges had erred in relying upon the belief evidence of an assistant commissioner Garda as to his membership of the IRA when same was unconstitutional and in breach of the European Convention on Human Rights.


Held , in dismissing the appeal, that, in relation to the applicant's arrest and detention, he had been asked to stay in the back of the jeep for some 10 minutes before being arrested, during which time the Gardaí conducted certain investigations. However, the applicant was not detained before his arrest. He was at most discouraged from leaving the jeep for a very short period but had made no allegation in evidence of having been prevented from doing so. In the circumstances, the Special Criminal Court had been entitled to decide against the applicant on this point. In relation to inferences drawn from statements made by the applicant, he had been asked about a number of text messages on his mobile phone. The applicant's account was that he could not remember the texts, to whom they were sent or from whom they were received or indeed what they had meant. The phones between which the text traffic took place were both registered in false names. There was evidence from which the court was entitled to hold that the applicant was familiar with a number of persons, yet in an interview pursuant to s.2 of the Offences Against The State (Amendment) Act 1998 he had answered that he could not remember them. The questions put to the applicant were mostly answered but the court determined that a number of the answers were not truthful and so amounted to a failure to answer material questions. In these circumstances the Special Criminal Court had been entitled to draw inferences. In relation to the belief evidence of the assistant commissioner, the restriction on the ability of the defence to cross-examine as to the sources of his belief given in evidence pursuant to s.3 of the Offences Against the State (Amendment) Act 1972 was not, ipso facto, a failure to comply with either Art.38 of the Constitution or with art.6 of the European Convention on Human Rights (People (DPP) v Donohue , unreported, Special Criminal Court, November 28, 2006 applied).

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DPP -v- Doran (2009)

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Facts The applicant applied for leave to appeal his conviction of membership of an unlawful organization on the grounds that the trial court erred in law and/or in fact in relying on evidence given at a separate trial in relation to an individual who was also convicted of membership of an unlawful organization, in relying on telephone records as evidence from which adverse inferences could be drawn, in concluding the responses of the applicant in relation to the telephone contact with the aforementioned individual were false, in concluding that the responses of the applicant in interview to questions relating to phone contact between him and that individual fell within the definition of answers from which inferences could be drawn due to either silence, evasion or falsity and finally in concluding that the responses given by the applicant corroborated the belief evidence of the Chief Superintendent in relation to the applicant's membership of the unlawful organization. The applicant had acknowledged a friendship with the individual in question but denied membership of an unlawful organization.

Held by CCA (Macken, Murphy, Dunne JJ) in quashing the conviction and ordering a re-trial: That the applicant's own evidence of his association with the individual concerned was consistent with the friendship he described and that evidence could not be taken, on its own, as corroborating the Chief Superintendent's belief. The trial court fell into error in going beyond the appropriate analysis of the questions posed and any limits inherent in those, and the answers given, and in finding corroboration in the simple number of telephone contacts between the parties. Furthermore, it appeared that the trial court did rely on evidence given in relation to the individual concerned, which did not concern the applicant.

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DPP -v- Joseph O'Reilly (2009)

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Facts: The applicant sought to appeal his conviction for murder of his wife on the basis inter alia that the trial judge had erred in permitting the prosecution to adduce evidence of interviews with the applicant in custody where it was clear that he had exercised his right to silence for that period of time, that the trial judge had erred in refusing to exclude from the jury a witness statement in circumstances where the applicant was a suspect and had no caution administered to him and that the trial Judge had erred in refusing to exclude mobile phone records information on the basis that it had not been proven that O2 Ireland was a licensed operator. The applicant also alleged that the trial judge had erred in refusing to exclude the evidence of an individual in respect of the movements of a motor vehicle by CCTV and that the trial judge had refused to exclude prejudicial emails months before the crime.

Held by the Court of Criminal Appeal per Murray CJ, in refusing the application, that the directions of the Judge to the jury were apt and appropriate and no error had been made in explaining the operation of the onus of proof and the right to silence. The voluntary statement made by the applicant was in principle admissible and the Trial Judge had exercised a discretion to admit the evidence as he saw fit. This ground of appeal failed. The Court was quite satisfied that on the basis of clear and admissible evidence as to the fact of the mobile phone license that the jury were entitled to act on that evidence as they saw fit and to conclude that O2 Ireland was a licensed operator at the time. The ground of objection to the CCTV evidence as to the motor vehcile was misconceived. That evidence was in fact limited. The emails were manifestly admissible and relevant evidence. Their timing was sufficiently proximate to the crime to be material evidence.

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DPP -v- Kearney (2009)

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Facts the accused appealed his conviction for the murder of his wife. The grounds of appeal relied upon by the accused were that the trial judge had erred in permitting the admission into evidence of his wife's diary, that the prosecution had failed to establish good and sufficient grounds for the admission thereof, that the trial had been unsatisfactory by reason of the prosecution leading evidence which conveyed to the jury that he had exercised his right to silence during garda questioning and that the trial judge had erred in refusing a directed acquittal of the accused

Held by the Court (Kearns J) in dismissing the appeal that whilst the diary could have only related to the state of mind of the deceased and not the accused, the evidence was nonetheless relevant and its probative value outweighed its prejudicial effect.

That the trial judge had been correct in ruling that the evidence surrounding garda questioning of the accused could have been adequately dealt with by an appropriate charge to the jury. There was nothing procedurally wrong in telling a jury that an extensive interviewing process took place where nothing of evidential value arose from those interviews.

That the alternative explanation for the cause of death of the deceased was so remote as to be beyond the realm of possibility and the refusal of the trial judge to direct an acquittal was not in error.

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Condron -v- UK (2001)

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This case ([2001] 31 EHRR 1) in the EHCR demonstrates that the Right to silence, while not absolutely guaranteed by Article 6 of the European Convention on Human Rights, is at the heart of the notion of a fair trial, and that a trial judge must be very careful when directing a jury on the interpretation of a suspect's refusal to answer questions.

The Condrons were accused of supplying heroin, and were intoxicated when questioned by police. Their solicitor advised them to give a 'no comment' interview, on the grounds that they were unfit to be questioned. At trial the judge, in accordance with s.34 of the Criminal justice and public order act (1994) directed the jury members that they were entitled to draw adverse conclusions from the accuseds' failure to respond to questions from the police. However, the EHCR ruled that they had been denied a fair trial. The reasoning was that the jury had not be directed that they could only draw adverse conclusions from the failure of the accused to answer unless it had been shown that the only credible reason was having no answer. In this case, the prosecution had not established that to be the case. Although the ECHR found against the UK, it did not disapprove the finding in Murray v united kingdom (1996) which rejected the idea that the right to silence was absolute.

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Saunders v. United Kingdom (1996)

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The European Court of Human Rights said that

“… although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.

Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6”.

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Right to Silence - Summary

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Like all rights, the Right to Silence is subject to limitations based on:

Express limitation in wording of Article (not applicable here)
Conflicting Right of other party (e.g. Right of the State to prosecute Crime)

Proportionality

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Quinn-v-Ireland (2001)

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HELD (ECtHR): while acknowledging that the right to silence and the right not to incriminate oneself as laid out in Article 6 of the ECHR was not an absolute right, section 52 went further than was necessary to meet the needs of the state.

Remember, it’s a self-contained offence, therefore the evidence of failure or refusal can only be given when prosecuting an accused for an offence under section 52.

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Murray v United Kingdom [1996]

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HELD: Article 6 of the ECHR requires access to a Solicitor for Adverse Inferences to be drawn.

However, Murray did not particularise that the Solicitor must always be present during the interview

Our Supreme Court, therefore, availed of this gap in the Murray judgement to conclude that Irish accused does not have a right to be accompanied by Lawyers in interview, or even to regular updates on the progression of the Interview.

BUT, it means that adverse inferences can only be drawn when access to solicitor has been granted.

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Adverse Inferences - Summary

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Not acceptable to convict solely on the basis of inferences from silence, Heaney & McGuinness -v- Ireland, Quinn -v- Ireland.

It is acceptable to draw inferences from silence where they form only part of the evidence - Rock -v- Ireland.


(i)Courts would only take such inferences as were “Proper”

(ii)No Conviction could be based solely on the adverse inferences that were drawn at the Trial from your Silence

The Court cannot draw adverse inference unless statute provides for same DPP v Finnerty [1999].