Ireland: Curtailment of the right to silence through statutory adverse inferences

Abstract

In Ireland, the right to silence has been significantly impacted by the legislative introduction of adverse inference provisions. In specified circumstances, with varying threshold requirements, a suspect’s failure to answer questions or provide information during Garda (police) questioning can form the basis of an inference against them at trial. Ireland has not opted in to either Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence or Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. This article examines the constitutional and common law context of the protection of the right to silence in Ireland; the operation, and expansion, of the statutory inference regime; the lack of legislative provision for a right to legal assistance during Garda interview; and relevant European Court of Human Rights jurisprudence. While there are some benefits to overt legislation and safeguards attached to the drawing of inferences from pre-trial silence, the question must be asked whether a detained suspect in Ireland truly has a protected right to silence in real terms, given the proliferation of inference provisions.

Introduction

While the right to silence is recognised as being protected in Ireland under both the Irish Constitution and the European Convention on Human Rights (ECHR), many legislative incursions on the right now exist. These primarily take the form of provisions allowing for inferences to be drawn at trial from the failure or refusal of an accused person to answer certain questions during the pre-trial investigative stage of the criminal process. This article begins with an introduction to the Irish criminal justice system in general terms before going on to examine the history of the right to silence in Ireland. It then outlines the many legislative interferences with this important right, considering their varying threshold requirements and the safeguards which attach thereto. Related issues such as the consequences of lies in the criminal process, the rules relating to the production of documents, and the taking of forensic samples are then discussed, before moving on to outline the Irish law and practice on the right of access to legal assistance in garda (police) custody, which is, of course, of significant relevance to the right to silence also. The article concludes with a look to the future: a future most likely containing continued reliance on pre-trial silence as evidence in criminal cases in Ireland, and ongoing failure to opt in to Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence.

The Irish criminal justice system

The Irish criminal justice system is adversarial in nature and is based on the traditional English common law system. Legislation governs certain aspects of the criminal process, but many of the rules of evidence and criminal procedure stem from the case law of the superior courts.

There is a very strong constitutional tradition in Ireland and many facets of criminal procedure have constitutional underpinning within Bunreacht na hÉireann (the Constitution of Ireland) 1937. Certain articles of the Constitution are overtly and specifically relevant to the criminal process, and the so-called Doctrine of Unenumerated Rights, which emerged in the mid-1960s, has allowed for the judicial ‘discovery’ of other relevant constitutional rights also.

Ireland is a member of the European Union but, like the former position of the United Kingdom and the current position of Denmark, it does not participate fully in Justice and Home Affairs matters. Ireland maintains an ‘opt in’ approach to directives in this area. While Ireland has, for example, opted in to Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime and Directive 2012/13/EU on the right to information in criminal proceedings, it has not opted in to other criminal justice directives, such as Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings, and Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence.

Ireland is also a party to the ECHR, which has been incorporated into domestic law by way of the European Convention on Human Rights Act 2003. This Act requires courts to interpret laws in a Convention-compatible manner and to take ‘judicial notice’ of the Convention and the jurisprudence of the European Court of Human Rights (ECtHR). An Irish court may make a declaration of incompatibility if it holds that a statutory provision or rule of law is incompatible with the state’s obligations under the Convention. Such a declaration places the legislature on notice that there is a difficulty which they ought to remedy. In Ireland, however, a declaration of unconstitutionality, rather than incompatibility with the ECHR, is both more likely to occur (as courts examine constitutional issues first and only move on to ECHR matters if there is no constitutional difficulty ¹ ) and more effective, as it renders the impugned law void and inapplicable.

While the Constitution and the ECHR have provided minimum standards of rights protection, the Irish criminal justice system has moved, over the past 35 years, from what would be described as a ‘due process’ oriented system to one which includes many ‘crime control’ features. ² John Jackson and I have previously observed that

‘where legislation is enacted which interferes with constitutional rights, the courts have usually endorsed it, so long as certain base-line protections are in place to protect the suspect who is subjected to increased risks of lengthy custody and questioning as a result of expanding police powers’. ³

The experience of the right to silence in police custody in Ireland is illustrative of this approach: legislative incursions on the right, outlined in detail below, have been accepted by the courts as proportionate, and accepted as part of the contemporary criminal process. Having said that the incursionary statute must be clear in its terms, relevant safeguards must be applied, and the courts will not sanction any interference with the right which goes beyond those terms. ⁴

The right to silence in Ireland: A brief history

The trial-based right to silence, effectively the right not to testify, was the first to be established in the common law. That has never been supplanted in Ireland—an accused person cannot be compelled to give evidence at trial and no inferences can be drawn from a failure or refusal to testify. ⁵ This is in contrast to the current position in England and Wales whereby an accused’s failure to testify at trial, or to answer a particular question while testifying, can be the basis of an inference, ⁶ though they cannot be compelled to testify. ⁷ Historically, it appears that the pre-trial right to silence was recognised at the turn of the 20th century with the establishment of organised police forces and the transfer of pre-trial interrogational functions from the judiciary to the police. The pre-trial right was necessary in order to protect the trial-based right and avoid the anomaly of suspects being convicted on the basis of statements made by them in the pre-trial period which they were unable to challenge at trial due to their legal incompetence as a prosecution or defence witness. ⁸ McGrath notes that, even when accused persons were ultimately deemed competent as defence witnesses, and could therefore give evidence at trial to alter or revoke any statements made in the pre-trial period, the pre-trial right to silence was still required as a safeguard against police abuses and in order to ensure the voluntariness of statements.

When Ireland declared independence from Britain, the right to silence was originally said to have been carried over into the Irish legal system. ⁹ However, a 1931 amendment to the Constitution of the Irish Free State, ¹⁰ art 2A, provided that it was a criminal offence for an arrested person to refuse to answer particular questions put to them by police officers acting under certain powers. Article 2A made Ireland the first common law jurisdiction to curtail the right to silence in modern times. ¹¹

The Irish people voted on and enacted a new Constitution in 1937, however, and no provision analogous to art 2A was included. The right to silence then regained its traditionally protected position under the common law. Since then, despite the absence of any specific reference to the right to silence or the privilege against self-incrimination within the 1937 Constitution, the Irish courts have determined that it is constitutionally protected. There has been some dispute as to the specific constitutional provision from which this protection derives—is it a corollary to the right to freedom of expression under art 40.6, or a constituent part of the right to a fair trial under art 38.1? The Supreme Court in Heaney and McGuinness v Ireland held that it is the former. ¹² That case examined s 52 of the Offences Against the State Act 1939, which was part of a legislative response to rising paramilitary tensions in Ireland relating to the so-called ‘Troubles’ in Northern Ireland. Section 52, likely inspired by art 2A before it, made it an offence for a detained suspect to fail to account for their movements and actions during a specified period and to give all the information which they possessed in regard to the commission or intended commission by another person of a specific offence. Such failure could be punished by up to 6 months’ imprisonment. Using the proviso to art 40.6, which provides that freedom of expression may be curtailed where the exigencies of public order or morality so require, the Supreme Court deemed s 52 a proportionate interference with the right to silence, in the context of the threat posed to public order by paramilitary activity. ¹³ The Heaney case went on to the ECtHR where it was held that the right to silence/privilege against self-incrimination is protected under art 6 ECHR, the fair trial provision of the Convention, and that s 52 ‘destroyed the very essence of [the accuseds’] privilege against self-incrimination and their right to remain silent’. ¹⁴

Domestically, it was held by the Supreme Court in Re National Irish Bank (under investigation) (No.1) ¹⁵ that a statement obtained from a suspect under the compulsion of a legislative provision which deemed the failure or refusal to answer particular questions to be an offence would not generally be admissible, unless the trial judge was satisfied that it was voluntary. ¹⁶ The admission of an involuntary statement would be in breach of the right to a fair trial, under art 38.1. The judgment in Re National Irish Bank, along with the ECtHR judgment in Heaney reasserted the link between the right to silence and the right to a fair trial, and made provisions which criminalise silence largely undesirable.

Despite the ECtHR findings in Heaney, the legislature has not removed s 52, or altered it in any way. However, it seems to have fallen into disuse, perhaps as a result of that case, or the decision in Re National Irish Bank, or both. Interestingly, there are also a number of other similar provisions which criminalise the failure to provide certain information. ¹⁷ Some such provisions compel only the utterance of an individual’s name and address, ¹⁸ though others are more onerous. ¹⁹

In the main, legislative interference with the right to silence in police custody in Ireland has now shifted to the design of provisions which allow inferences to be drawn at trial from the failure of a detained suspect to mention certain facts, provide certain information, or answer certain questions. The Irish iterations of such provisions have not been tested before the ECtHR, but similar provisions in the United Kingdom have been accepted by the Court. ²⁰ While the ECtHR accepts the notion of inference provisions, it has consistently linked the right of access to legal advice with the privilege against self-incrimination and found breaches of art 6(3) ECHR where legal advice was not provided in a timely fashion to persons against whom inferences were later drawn. ²¹ The jurisprudence of the ECtHR on this appears to have been influential in policy and legislative decision-making in Ireland as specific safeguards have been attached to inference provisions requiring, for example, reasonable opportunity to consult a solicitor prior to relevant interviews. ²² The Irish inference provisions are discussed in detail below.

The general approach

Trial by jury is the norm for serious offences in Ireland. There also is a Special Criminal Court which sits as a three judge court with no jury, and hears serious cases, usually, though not exclusively, relating to paramilitary or organised crime. The trial is still the main focus of the Irish criminal process, with oral testimony subject to cross-examination. However, over the past 35 years the relative weight and impact of the investigative stage of the criminal process has been increasing, following an increase in police powers of arrest for the purposes of detention. ²³ For most serious offences (those with a potential term of imprisonment of 5 years or more), suspects can be held for questioning for a specified period of time, ranging from a maximum of 24 hours for most serious offences up to a maximum of 7 days for offences relating to drug trafficking, organised crime, or murder involving the use of a firearm. The first 48 hours of any detention is within the control of the police (An Garda Síóchána), but from then on judicial authorisation for continued detention is required.

The Irish courts have increasingly recognised the importance of police custody as a part of the overall trial process, and seek to insist on fairness therein. The right to a fair trial within the Irish Constitution encompasses the presumption of innocence and the Irish criminal justice system adheres to the traditional common law view that the burden of proof in a criminal trial is on the prosecution, and the accused is under no obligation to assert their innocence. An inculpatory statement made by a suspect under garda questioning may be deemed involuntary and therefore inadmissible, due to a breach of the right to a fair trial, where it arises due to a threat or inducement, or in circumstances of oppression.

The ‘right to silence’ and the ‘privilege against self-incrimination’ are generally used interchangeably in the Irish context, though one could draw certain distinctions between the two phrases. The ‘right to silence’ is more often referred to, particularly in relation to questioning in police custody. As noted above, an accused at trial in Ireland cannot be compelled to testify and no inferences may be drawn from their failure to give evidence at trial in their own defence. ²⁴ Accordingly, the central focus in terms of the right to silence in Ireland is on a failure or refusal to answer questions in police custody, and the potential trial consequences of same. In that context, the right to silence requires that the arbiter of fact in a criminal trial (the jury, or the judges of the Special Criminal Court) should not usually be told about any failure or refusal of a detained suspect to answer garda questions or provide information to gardaí at the time of questioning. Where a detained suspect answered certain questions but not others, the jury should only be provided with information as to any inculpatory or exculpatory statements made by the suspect, and no reference should be made to instances where they relied on their right to silence. ²⁵

Exceptions to this general rule exist, in the form of specific statutory provisions which allow for the jury to be told about, and invited to draw inferences from, specific failures of the detainee (see below). Outside of the circumstances delineated by statute, however, no inferences are to be drawn from an accused’s exercise of the right to silence. Indeed, no attention should generally be drawn at trial to the pre-trial exercise of the right, unless covered by the statutory inference provisions. ²⁶

Legal consequences of the use of the right to silence: The drawing of inferences

While, as discussed above, certain stand-alone offences based on pre-trial silence are in existence, recent years have seen a preference for the promulgation of inference provisions in Ireland. Initially such provisions, although applicable to all arrestable offences, ²⁷ were limited in their scope and allowed for inferences to be drawn from pre-trial silence in response to garda requests for explanation of any objects, marks or substances in the accused’s possession or on their person; or for an account of the accused’s presence in a particular place. ²⁸ The constitutionality of these provisions was tested, and upheld, in Rock v Ireland. ²⁹ As it had previously held in Heaney, ³⁰ the Supreme Court stated that the right to silence is protected as a corollary of the right to freedom of expression in art 40.6 and it may be restricted in order to serve the exigencies of public order and morality. The Court held that the restriction on the right to silence occasioned by such provisions was proportionate to the aim which was sought to be achieved and represented the necessary balance between the right to silence and the duty of the State to defend and protect the life, person and property of all its citizens. The Court also held that two important limiting factors were in operation to combat any perceived imbalance within the sections. First, the inferences which might be drawn were evidential in nature only and the legislation provided that such inferences could not be the sole basis for the conviction of the accused. Secondly, the Court is obliged to act in accordance with the principles of constitutional justice and, having regard to an accused’s right to a fair trial, is under a constitutional obligation to ensure that no improper or unfair inferences are drawn or permitted to be drawn from such failure or refusal. ³¹

Irish legislation gives no specific guidance on the types of inferences that might be drawn from the pre-trial silence of the accused, ³² but it is clear that the aim of such provisions is to restrict the right to silence (by attaching adverse consequences thereto) in order to increase efficiency in the investigation, prosecution and conviction of criminal suspects. In the same way that fear of committing an offence by silence can compel a suspect to provide certain information, fear that silence may be used against him at later trial can also put pressure upon a suspect and make it undesirable for them to insist upon their right to silence in the pre-trial, investigative process. Furthermore, where a suspect does rely on the right to silence at that time, this very reliance may be used, under specific legislative provisions, as evidence against them at trial.

Over the years the formulation of inference provisions in the Irish criminal process has changed. The first provisions introduced were ss 18 and 19 of the Criminal Justice Act 1984. As outlined above, these allowed for the drawing of inferences from the accused’s failure or refusal in the pre-trial period of investigation to account for the presence of any object, substance or mark on their person, clothing or footwear, or in their possession, or in the place where they were arrested ³³ or for their presence at a particular place. ³⁴

Initially, these provisions referred to inferences being drawn ‘if evidence of the said matters is given in later proceedings’, but the provisions were reformulated under the Criminal Justice Act 2007. Sections 18 and 19 now refer to inferences being drawn where, following a request by a questioning garda to give an account of the relevant matters, ‘the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her’. ³⁵ Notably, there is now no requirement that the accused should seek at trial to rely on any fact or account of events which he declined to mention during questioning. Silence in the face of circumstances which ‘clearly called for an explanation’ during the pre-trial period is enough for the drawing of an inference.

While there has been no in-depth analysis of the meaning of the phrase ‘clearly called for an explanation’ in the Irish courts to date, it seems to suggest that at least some level of reasonable suspicion should exist linking the suspect’s presence in a particular place, possession of an object, or having a mark or substance on their clothing with their potential involvement in a specific criminal offence. ³⁶

Following the initial 1984 introduction of ss 18 and 19, broadly defined inference provisions were included in both the Criminal Justice (Drug Trafficking) Act 1996 ³⁷ and the Offences Against the State (Amendment) Act 1998. ³⁸ In relation to specific offences, these provisions allowed for inferences to be drawn at trial from a suspect’s failure to mention, during the pre-trial process, a fact which they later relied on in their defence, being a fact which they ought reasonably to have mentioned at the time of questioning or charging. These provisions have now been repealed and replaced by the Criminal Justice Act 2007 which inserts s 19A into the Criminal Justice Act 1984. This is the broadest inference provision which the Oireachtas ³⁹ has sanctioned to date.

Section 19A ⁴⁰ applies to all arrestable offences ⁴¹ and provides that inferences may be drawn at trial from a suspect’s failure in the pre-trial period to mention any fact, when being questioned, charged or informed that they might be charged with a particular offence, which they later rely on in their defence at trial, being a fact which in the circumstances existing at the time ‘clearly called for an explanation’. A number of safeguards, aimed at reflecting both constitutional and ECHR jurisprudence on the right to silence/privilege against self-incrimination, are provided for suspects under s 19A and they are also applicable to all other inference provisions ⁴² :

The inference may not be the sole or main basis for a conviction but may serve as corroboration of any evidence in relation to which the failure is material;

The accused must be told in ordinary language that it may harm the credibility of their defence if they do not mention when questioned, charged or informed that they may be prosecuted, something which they later rely on in court;

The accused must be afforded a reasonable opportunity to consult a solicitor prior to the relevant silence;

The court or jury in deciding whether or not to draw inferences ought to consider when the account or fact concerned was first mentioned by the accused; and

No inference shall be drawn in relation to a question asked in an interview unless either the interview has been electronically recorded or the detained person has consented in writing to the non-recording of the interview.

One benefit of the legislative creation of inference-drawing provisions is the overt nature of their operation and the safeguards which attach thereto. For example, inferences will not be drawn if the suspect was not told of the possibility of that consequence, was not afforded an opportunity to consult a lawyer in relation to the inference interview, or the interview was not audio-visually recorded. While the safeguards to some extent breathe life into the inference provisions, allowing them to operate within the system given their technical compliance with constitutional and ECHR standards, they do at least provide some boundaries and clarity of operation. Inferences might be drawn in a less overt manner in other jurisdictions, in the absence of such protections. ⁴³

The specific formulation of s 19A requires that an inference can only be drawn from the failure to mention a particular fact when (i) such a fact ‘clearly called for an explanation’ during the pre-trial period and (ii) it was a fact which the suspect sought to rely upon at trial. This two-pronged threshold requirement is more stringent than ss 18 and 19, as reformulated under the Criminal Justice Act 2007, which omit the second element. Of course, those provisions are narrower in terms of their application as they attach consequences for failure to account for particular matters only, for example, substances and objects.

Two further additions to the Irish inference stock are: s 2 of the Offences Against the State (Amendment) Act 1998, which applies in relation to the offence of membership of an unlawful organisation (most often the IRA); and s 72A of the Criminal Justice Act 2006, ⁴⁴ which operates in the context of the rather broad concept of participating in or contributing to any activity of a ‘criminal organisation’. ⁴⁵ The latter provision was introduced with some level of controversy ⁴⁶ in the wake of the murder of a man named Roy Collins in Limerick. ⁴⁷ Mirroring s 2 of the 1998 Act, it provides that, in relevant investigations, an inference may be drawn at trial from the pre-trial failure of a suspect to ‘answer a question material to the investigation of the offence’. ⁴⁸ The safeguards applicable to ss 18, 19 and 19A also apply to ss 2 and 72A. As noted above, s 19A, although applicable to all arrestable offences, has a two-pronged threshold for usage, while ss 18 and 19 allow for inferences to be drawn from failure to account for very particular matters in the pre-trial investigatory stage, where such an account was ‘clearly called for’. However, under ss 2 and 72A, those threshold requirements are omitted.

Some of the relevant questions which may be asked by gardaí and may lead to inferences at trial might be backed by a certain level of evidence, for example, a question related to statements or conduct of the suspect implying or leading to a reasonable inference that he was at a material time directing the activities of a criminal organisation, ⁴⁹ while others seem to allow for very little grounding in evidence, for example, a request that ‘the suspect give a full account of his or her movements, actions, activities or associations during any specified period’. ⁵⁰ Section 72A includes the proviso that a question is not to be regarded as being ‘material to the investigation of the offence unless the member of the Garda Síochána concerned reasonably believed that the question related to the participation of the defendant in the commission of the offence’. ⁵¹ This subjective-objective hybrid proviso seems to be below the threshold of ‘clearly calling for an explanation’, and there is no prerequisite requirement for a fact not mentioned at that time to be relied on at trial under either s 2 or s 72A, though both provisions insist that only such inferences ‘as appear proper’ ought to be drawn.

I have argued elsewhere that legislative interferences with the right to silence in Ireland have suffered from ‘function creep’, to the detriment of the protection of that right. ⁵² Initially, offences based on silence were enacted in an effort to compel suspects to provide information and to directly punish them for not doing so. As a result of the general disapproval of such offences, inferences have taken over. Sections 18 and 19 initially allowed for inferences to be drawn in relation to marks, substances or objects, or presence in a particular place, where evidence of the matter was given in later proceedings, and later, where the specific matter was seen to ‘clearly call for an explanation’ in the period of garda custody. Section 19A, as discussed, has a two-step threshold requirement that the fact which was not mentioned by the suspect (i) ‘clearly called for an explanation’ and (ii) was sought to be relied upon at trial. Section 72A invites the trier of fact at trial relating to an ‘organised crime’ offence to draw an inference from the suspect’s failure to answer questions raised in garda interview that are, in the reasonable opinion of the questioning garda, material to the investigation of the offence. Not to draw an inference because the accused did not mention a fact he now relies on. Not to draw an inference because the matter in question ‘clearly called for an explanation’. Bit by bit, little by little, incursions on the right to silence have altered and expanded. While s 72A is confined to ‘organised crime’ and s 2 of the 1998 Act is even more restrictive in applying solely to the offence of membership of an unlawful organisation, past experience in the Irish criminal process shows that legislation enacted to address specific perceived needs tends to find itself in operation in broader contexts, gaining legitimacy through enactment, usage and the passage of time. ⁵³

It should be noted that current garda practice generally sees a suspect undergoing a number of interviews where the traditional caution is administered—‘You are not obliged to say anything unless you wish to do so, but anything you say will be taken down in writing and may be given in evidence’—before arriving at a later, separate interview in which the inference provisions are invoked. In such an interview, gardaí must retract the traditional caution and then explain ‘in ordinary language’ the potential consequences of a failure or refusal to provide information in response to specific questions that will be asked. ⁵⁴ The inference provisions state that inferences can only be drawn where the accused has been told in ordinary language of the consequences which might follow at trial for a failure to provide the requested information. ⁵⁵ The legislation does not require understanding, only explanation. However, it seems likely that the courts would deem it unfair to draw an inference in genuine circumstances of confusion on the part of the accused. ⁵⁶

There are now so many inference provisions applicable to so many offence types in Ireland, with varying threshold requirements, that one has to ask if a detained suspect truly has a protected right to silence in real terms at all. The once controversial notion of attaching evidential weight at trial to the failure of a suspect to answer questions or offer information in the pre-trial investigative process is now well-embedded in the Irish criminal process. It has been called into play by the legislature on a number of occasions in response to public concerns around criminality. The Offences Against the State (Amendment) Act 1998 which contains s 2, for example, was enacted in the aftermath of a serious bombing in the town of Omagh in Northern Ireland, and was part of a legislative effort to quell public fears around a potential increase in paramilitary activity in the aftermath of the signing of the Belfast/Good Friday Agreement. As noted earlier, s 72A was part of a legislative package enacted after a high profile ‘gangland’ murder. When the state, and its citizens, feels under threat there is often a political resort to draconian legislative measures which seek to curtail rights in order to assist investigations and facilitate prosecutions. The legislature may push for such change, and while the courts can insist on some level of rights protection, compatible with both the Constitution and the ECHR, the Irish courts, in deference to the legislative function, have acquiesced in much of the interference with the right to silence which has been enacted. ⁵⁷ Of course, the danger at all times exists that rights will be excessively curtailed in such moments of societal fear, and that the real danger created will be of inappropriate convictions or miscarriages of justice.

Related matters: Lies, documents and forensic samples

Any demonstrable lie told to police during the pre-trial stage may be admitted at trial. Lying may undermine the accused’s credibility and may also adversely impact sentencing. Furthermore, a number of the legislative inference provisions specify that providing false or misleading accounts in answer to certain questions may lead to the drawing of an inference at trial. ⁵⁸ The courts have considered whether an account of any kind, even rather unlikely, can preclude the drawing of inferences. The Supreme Court held in People (DPP) v A.McD ⁵⁹ that, even where the legislation does not specify that a false or misleading account might result in inference, a ‘minimum level of plausible engagement’ ⁶⁰ is necessary in order to satisfy the requirements of a relevant provision. ⁶¹

In certain circumstances, a person may be required to produce certain documents, and a failure to do so would amount to a criminal offence. Specific legislation in this regard was introduced as a result of the so-called ‘banking crisis’ and recession in Ireland in 2008. In investigations of a specific set of offences which relate to banking, investments, competition law, specific aspects of company law, theft and fraud offences, and certain criminal damage offences, ⁶² gardaí may to apply to the District Court for an order requiring a person to make available specific documents, or documents of a particular description, or to provide certain information by answering questions or making a statement containing the information. A failure to comply with any such order is an offence, punishable by a fine or imprisonment for up to 2 years, or both. The legislation specifically provides that a statement or admission made by a person pursuant to a relevant order shall not be admissible as evidence in proceedings brought against the person for an offence other than the offences within the Act itself. ⁶³ However, there is no reference to the admissibility or otherwise of documents produced under such an order.

Outside of the specific circumstances just outlined, Irish law is somewhat unclear on compelling the production of documents. McGrath observes that in Re National Irish Bank the Court indicated that ‘the privilege against self-incrimination encompassed not only an entitlement to refuse to answer questions but also to refuse to produce documents’. ⁶⁴ However, an obiter statement in Curtin v Dáil Éireann ⁶⁵ seemed to support US ⁶⁶ and ECtHR ⁶⁷ case law which drew a distinction between ‘requiring a person to make a statement or give evidence that may tend to incriminate him and requiring him to produce a document or other physical item’. ⁶⁸ While no further case-law exists specifically on the compelled production of documents in Ireland, in DPP v Gormley and White ⁶⁹ it was held that certain forensic samples could be obtained from a detained suspect prior to their accessing legal advice, while an interview seeking to obtain statements from them ought not to occur in such circumstances. McGrath views this as confirming that the right not to incriminate oneself, under Irish law, does not extend to items of real evidence. ⁷⁰

In relation to forensic samples, inferences can be drawn at trial in Ireland from a suspect’s refusal, without reasonable excuse, to consent to the provision of ‘intimate’ samples for forensic analysis during the investigative stage. ⁷¹ Non-intimate samples ⁷² can be taken without consent, so no inference issue arises.

The right to remain silent and the right to a lawyer

In the 1977 case of People (DPP) v Madden, ⁷³ it was held that a detained suspect has a right of reasonable access to legal advice, denial of which would render detention unlawful. In DPP v Healy, ⁷⁴ in 1990, the Supreme Court confirmed that this right was constitutional in nature. The right to be informed of the right of reasonable access to legal advice and the substantive right itself were given legal standing under the Criminal Justice Act 1984 ⁷⁵ and the Treatment of Persons in Custody Regulations 1987. ⁷⁶

In Lavery v The Member in Charge, Carrickmacross Garda Station, in 1999, the Supreme Court held, rather bluntly, that the right of ‘reasonable access’ to legal advice did not include the attendance of a solicitor at interview. ⁷⁷ It was also acceptable, at that time, for a detained suspect to be questioned by gardaí while awaiting the arrival of their requested solicitor, so long as bona fide attempts were being made to comply with the request for attendance. ⁷⁸ In People (DPP) v O’Brien, ⁷⁹ the Court clarified that a ‘deliberate and conscious’ violation of the right would render detention unlawful and any evidence obtained during such period inadmissible. However, the detention would become lawful again once access to legal advice was provided, so a breach of the constitutional right to legal advice could be ‘cured’ by providing even brief, subsequent access to a lawyer. ⁸⁰ Thus a suspect could be lawfully interviewed prior to actually obtaining legal advice.

As previously mentioned, Ireland has an opt in to EU Directives in the Justice and Home Affairs division. Ireland has not opted in to the Directive on the Right to Legal Assistance. However, the existence of that Directive, consideration of opting in, and the increasing emphasis on the right to legal advice (particularly when combined with interferences with the right to silence) within ECtHR jurisprudence, for example, Salduz v Turkey, ⁸¹ led the government to establish a working group to advise on a system providing for the presence of a legal representative during Garda interviews in January 2013. The Working Group provided practical recommendations on implementing the Directive in Ireland, ⁸² though the state did not in fact, and has not yet, opted in.

In 2014, in DPP v Gormley and White, ⁸³ the Supreme Court departed from previous case law and ruled that interrogation of detained suspects should not commence until after legal advice, where sought, has been obtained. Moving toward European jurisprudence, the Court shifted its focus from viewing a breach of the right of access to legal advice as rendering the detention unlawful, to viewing this as a breach of the right to a fair trial. On this, Clarke J importantly found that the arrest of an individual, by ‘the coercive power of the State’

‘represents an important juncture in any potential criminal process… Thereafter the suspect has been deprived of his or her liberty and, in many cases, can be subjected to mandatory questioning for various periods… It seems to me that once the power of the State has been exercised against a suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage’. ⁸⁴

Clarke J, relying on Salduz, recognised the need at this point for the solicitor to engage in work connected to building the defence, ⁸⁵ to advise on the lawfulness of the arrest and detention, and advise on questioning. Hardiman J, concurring, highlighted the increasing complexity of the law for which the specialist expertise of a solicitor is required and seemed to indicate that the Court might find a right to have the solicitor present in the interview if asked in an appropriate case. ⁸⁶

This obiter indication of an inclination to find a right to have a lawyer attend the interview prompted an unexpected response. Two months later, in May 2014, the DPP issued a letter to An Garda Síochána instructing that where requested, the attendance of solicitors should be facilitated and that all suspects should be advised that they may request a solicitor to attend interviews. Solicitors were permitted to attend the very next day, though by way of concession rather than a legal or constitutional right, with no legal clarity on how attendance should operate. ⁸⁷

In April 2015, almost a year later, An Garda Síochána issued a Code of Practice on Access to a Solicitor by persons in Garda Custody ⁸⁸ and in December 2015 the Law Society issued Guidance for Solicitors Providing Legal Services in Garda Stations. ⁸⁹ The Garda Code provides a narrow interpretation of the role of the solicitor: ‘[t]he solicitor’s only role in the Garda station should be to protect and advance the legal rights of their client’. ⁹⁰ This language is mirrored in the Law Society Guidance which comments that ‘Solicitors are required to protect and advance their client’s rights without fear or favour’. ⁹¹ As Legal Aid does not cover the detention period, in 2001 the Garda Station Legal Advice Scheme was established to provide payment for solicitors’ work in garda stations and is available to persons in receipt of social welfare payments or whose earnings are less than €20,316 p.a. The scheme was extended in 2014 to provide additional fees for solicitors’ attendance at garda interviews.

Take up is difficult to gauge, as An Garda Síochána does not collate statistics on detentions, interviews and solicitor attendance. The 2013 Working Group provided an approximate figure of 20,000 persons detained annually. Drawing on legal aid payments, the group concluded that of those, 21% had consultations with solicitors, as permitted at that time. ⁹² Going by the 2019 Legal Aid annual report, assuming similar numbers of detainees, 20% of detained suspects had in-person consultations and 11% had a solicitor attend the interview. ⁹³ These figures are low, compared to studies which suggest that somewhere between 33% and 53% of detainees in England and Wales receive legal advice in the police station. ⁹⁴

Another significant case on legal advice in Ireland is DPP v Doyle, ⁹⁵ decided by the Supreme Court in January 2017, and the ECtHR (Doyle v Ireland) in May 2019. ⁹⁶ In that case, despite the statements in Gormley, a majority of the Supreme Court refrained from recognising that the constitutional right of reasonable access to legal advice extended to having a solicitor present in the interview. A number of the judges stated that they might find the right within the Constitution in a future case, with one suggesting that an inference case might ground such a finding. The ECtHR in Doyle emphasised the importance of the right to legal advice, and clearly stated that art 6(3)(c) encompasses a suspect’s right to have their lawyer physically present during police interviews. ⁹⁷ However, applying the approach adopted in Beuze v Belgium, ⁹⁸ the Court held that on the facts in Doyle the overall fairness of proceedings had not been irretrievably prejudiced by the lack of access to a lawyer during garda interviews, and there was no violation of art 6. Despite the decision on the facts, the Doyle case clarifies that the presence of a lawyer at interview is required as part of the right to legal advice, and the right to a fair trial, under the ECHR.

The issue of disclosure in the Garda station is notable also. While Ireland has opted in to the Directive on the Right to Information, it is unclear what real impact this has on procedures in garda custody. It has not been transposed into Irish law, but is directly effective. However, there are no statutory guidelines in place in relation to disclosure in the Garda station. The Law Society guidance for solicitors places significant emphasis on the need to request pre-interview disclosure from gardaí. The Garda Code, however, states generally that ‘there is no legal requirement to have a meeting with a suspect’s solicitor, or to provide information prior to interview’. It does advise gardaí to be as accommodating as possible, without compromising the integrity of the investigation, in order to decrease the chances of a ‘no comment’ interview or multiple requests for consultations throughout the interview by the solicitor or detainee. ⁹⁹

Under the Garda Code, gardaí are obliged to ensure that any information that is given to a detainee or solicitor is accurate and true and must not misrepresent the strength of the evidence they are presenting. The Garda Code also states that

‘an Garda Síochána is not obliged to disclose any information that could prejudice an investigation. In this regard, the premature disclosure of information/details may sometimes impede or interfere with the investigation. It must be remembered that an interview is part of the investigation process and there must be some spontaneity about the actual interview. If information is handed out first, the suspect can make up his/her answers and there is no spontaneity about the matter’. ¹⁰⁰

The Law Society guidance suggests that where investigating gardaí are unwilling to make disclosures, solicitors may find it helpful to inform them that ‘in the absence of full and proper disclosure, clients cannot receive comprehensive legal advice’. ¹⁰¹

Where gardaí intend to invoke inference provisions, however, particular procedures should be followed. In the case of DPP v Fitzpatrick, ¹⁰² the Court of Criminal Appeal clarified the requirement that a detained suspect and their solicitor must have an opportunity to consult specifically on any inference provision. Accordingly, they must be told that the provision is going to be invoked so that consultation on the approach to interview in those specific circumstances is facilitated.

The Garda Code envisages a pre-interview briefing between the investigator and the solicitor when inference provisions are to be invoked. While it is noted in the Code that provision of information in this context is not the same as any post-charge prosecutorial disclosure requirement, it provides that the investigator should furnish the solicitor with enough information to enable them to perform their role without compromising the interview process. Specifically, it states that the solicitor should be provided with ‘certain basic facts that contextualise the matters to which the questions are going to relate’ so that the solicitor can advise the suspect appropriately on any decision to answer or not answer such questions.

Prior to an inference interview, the Garda Code indicates that gardaí should inform the detainee of their intention to invoke the provisions, remind the detainee of their right to remain silent, and explain the effect of the relevant provision(s) to the detainee in ordinary language in a step by step fashion. Gardaí should inform them that the member reasonably believes the facts may link the suspect to the offence, advise them that the interview will be electronically recorded (unless the suspect consents in writing to it not being recorded) and that it may be given in evidence if the suspect is brought to trial.

Finally, a note on legal professional privilege, which faces a particular difficulty in relation to inference provisions. Legal professional privilege is an important procedural protection that is afforded to a suspect in the criminal process so as to allow them to speak freely with their legal adviser without fear that any information exchanged will be used against them or will go beyond their confidential relationship with their lawyer. A threat to this protection arises where a suspect seeks to persuade a court that their reason for failing to mention certain facts in the pre-trial period was the advice of their solicitor to remain silent. In order to prove the genuineness or reasonableness of the suspect’s reliance on such advice, it may be necessary for the solicitor to explain to the court the reasons for the advice, thus waiving legal professional privilege. Once privilege is waived, the prosecution is free to ask questions on all of the communications between the suspect and their solicitor.

A threat to the continued existence of a meaningful legal professional privilege in turn threatens the quality of legal advice which can be provided to suspects in the pre-trial process as solicitors may feel inhibited in what they can say to or hear from their clients.

Conclusion

Briefly put, while the constitutional and ECHR underpinnings of the right to silence at the investigative stage in Ireland are generally respected, the free exercise of that right has been curtailed by legislative inference provisions, which have grown in their application and ambit since first introduced in the 1980s. A suspect may rely on their right to remain silent throughout garda questioning, but in particular legislatively defined circumstances their failure to respond to certain questions or provide certain information can result in the jury at trial (or the judges of the Special Criminal Court) drawing an inference against them. Further research is required to ascertain the level of usage of the inference provisions both at the stage of custodial interrogation and at trial, as well as their impact in individual cases and across the criminal process as a whole.

As recently as September 2019, the Irish Minister for Justice and Equality claimed that Ireland’s inference regime deemed it ineligible to opt in to Directive 2016/343/EU. ¹⁰³ Quoting an earlier draft of the directive, which was stronger in its terms than the final iteration thereof (referencing a ban on the use of silence even as corroboration) the Minister said that opting in would ‘affect our criminal law procedures fundamentally’. ¹⁰⁴ He noted the legislative inference provisions and said that ‘[t]his legislation is a key tool in the investigation and prosecution of serious crime’. ¹⁰⁵ A few observations can be made in relation to this. First, it is unclear if the Minister and his department are aware that the text quoted in this response is not the final text of the Directive in use today. It would be somewhat worrying if the Irish Department of Justice was operating on a misperception of the operational EU law in this area. Secondly, given the changes in wording adopted throughout the legislative drafting history of the directive, it is unclear if the Irish inference regime is in fact entirely incompatible with Directive 2016/343/EU. ¹⁰⁶ As noted in the introductory article to this Special Issue, ¹⁰⁷ there are various possible interpretations of art 7(5) of the Directive, especially when read in conjunction with recital 28. The Directive’s supposed prohibition on the use of adverse inferences from silence might not be as definitive as was originally planned or as provided for in the earlier draft text quoted by the Minster for Justice and Equality.

Thirdly, and finally, the Minister’s comments lay bare the extent to which inferences from silence have become embedded in the Irish criminal process and are now viewed as a necessary tool of investigation and prosecution. There seems little hope that a change of heart will come about and the inference provisions will be removed. This leaves, essentially, only the options of preventing the enactment of further, more expansive inference provisions; insisting on the strict interpretation and application of those which already exist; and ensuring that other safeguards for criminal suspects operate effectively. To that end, improvement is required in the rules on legal assistance, for example. The legislature ought to place the right to legal assistance, including the right to have one’s lawyer present during garda interview, on a statutory footing. The introduction of a more formalised system to facilitate access to legal assistance, for any suspect who wishes to avail of it, ought to also be considered, in order to fully ensure that art 6 ECHR rights are upheld, particularly where evidential weight is attached at trial to a pre-trial failure or refusal to answer certain questions. This might also make it possible for Ireland to opt in to the Directive on access to legal assistance, even if the authorities continue to believe that the existing inference regime renders the Irish criminal process more intrusive on the right to silence than most other EU Member States, and ineligible to opt in to the Directive on the presumption of innocence.