Dáil Éireann - Volume 470 - 15 October, 1996

Ceisteanna — Questions. Oral Answers. - Right to Silence.

38. Mr. O'Donoghue asked the Minister for Justice the plans, if any, she has to restrict or abolish the rights of a detained person to remain silent while being questioned by the authorities. [18411/96]

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.

Some 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 has been 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 [27] 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 kept under constant review in the light of changes that have taken place in the nature of crime and the nature of society.

The central issue involved is the balance which has to be struck between the rights of an accused and the protection of the community. The House will be aware that during the passage of the Criminal Justice (Drug Trafficking) Act, 1996 through the Oireachtas the Government concluded that the right to silence in drug trafficking cases should be further clarified. I should say that Opposition Deputies also tabled amendments to that effect. The Act will allow inferences to be drawn from the failure of a person to mention when being questioned a matter which is subsequently relied on in his or her defence which could reasonably have been expected to have been mentioned at the time. As with the provisions of the 1984 Act, to which I have already referred, such inferences alone cannot form the basis of a conviction.

The Government believes that this approach was warranted given the nature of drug trafficking both in terms of the gravity of the offence and the organised nature of it. I am glad to say that this provision received the support of all sides of the House. I propose to keep the operation of this new provision in the Drug Trafficking Act under review particularly in the context of whether further changes in this area of the law could be usefully made.

Mr. O'Donoghue: Is the Minister aware that the right to silence originated in an age when people were not entitled to put forward a defence, and that it is outdated as we approach the new millennium? May I put it to the Minister that it makes absolutely no sense in a modern criminal justice system to allow an accused person to pick a spot on the wall to stare at and to say nothing in order, perhaps, to avoid a conviction? Does the Minister agree that an amendment to the criminal law is required to provide that the jury should be entitled to draw an inference from the silence of an accused person and that while that evidence should not stand on its own, it should nonetheless be admissible as corroborative evidence?

Mrs. Owen: A jury can draw inferences from people remaining silent for very specific reasons. If they fail to say why they were at the scene of a crime, why there was blood or dust or some other product on their clothes, an inference can be drawn by the jury. Under the drug trafficking legislation an inference can be drawn if somebody suddenly puts forward an explanation for being somewhere at the time of the offence, one which they did not advance when they were being questioned. It is not a case of changing the law to allow [28] the jury to draw inferences from silence; that already exists in certain cases.

I will continue to keep an open mind on whether we should extend this provision. I am conscious that the right to silence exists as a protection for somebody who is, perhaps, innocently detained by the Garda for questioning and may not want to give information about something personal they were doing that does not have anything to do with the investigation of a crime. It is necessary to be careful and not move too quickly to change something that has stood the test of time. I accept what the Deputy said. Many other provisions are built into our system to protect innocent people from being convicted and that is why I made further changes in the right to silence in the drug trafficking legislation. I will continue to keep the issue under review and will inform the House of any changes I propose to introduce.

Mr. O'Donoghue: For fear the Minister misunderstands me — I am sure she does not — I am speaking of a general amendment to the law to provide that an inference may be drawn from a person's silence and that this would be corroborative evidence. Surely the Minister could not put to this House the proposition that an individual who is innocent would gain anything by staying completely silent? The time has come for a measured response to what is an extremely serious problem for gardaí investigating crimes and questioning suspects, that is, the absolute right of the individual to stay silent. A minimalist change would be to allow an inference to be drawn from that silence which could then be used as corroborative evidence in the course of a trial. The Minister should recognise that it is necessary to bring about this change quickly because the current law is not appropriate to a modern criminal justice system.

Mrs. Owen: I will keep the matter under review. If I propose to make any changes I will inform the House.

Ms O'Donnell: The Minister referred to her acceptance of an amendment to the Criminal Justice (Drug Trafficking) Bill which allows for an inference to be drawn if a person relies on a fact he or she failed to mention when being questioned. She refused the second part of that amendment, however, which would have allowed an inference to be drawn where the person remains silent throughout the court case. Why did the Minister accept one aspect of the right to silence but refuse to accept a change in the law which allows a person — without any inference being drawn — to remain silent throughout the trial? On the general point raised by Deputy O'Donoghue, why did the Minister feel she could accept a change in the law on drug trafficking but not other serious crimes?

[29] Mrs. Owen: The Deputy is correct. There were two parts to her amendment and I introduced an amendment to give the correct wording to the intent of her amendment. I accepted the principle of removing the right to silence for specific charges under a specific Act because the crimes we were discussing were of sufficient seriousness. I said at the time, however, I did not think it was appropriate to abolish the right to silence totally by way of an amendment to an Act dealing with specific crimes. I agreed to target the further removal of the right to silence to that specific Act. If there is need to further extend it in the future I will do so, but I did not intend to deal with the right to silence in its entirely in that Act. The Deputy is a lawyer and knows some of these issues, such as the right to silence, are complex and do not lend themselves to being changed in a debate on an item of legislation. It is better to remove it in its entirety but there are mixed views as to whether that should be done. It should be done in a more considered way and that is what I am doing.