A person who is charged with a criminal offence enjoys certain rights. The principle right is that of the right to silence and the right not to incriminate yourself. The right to silence is an immunity, which differs in nature, origin, incidence and importance. The suspect’s immunity was developed in order to avoid the risk of untrue confessions being obtained from a person in police custody. The law does not prohibit a suspect from confessing to a crime. It does however provide that a suspect should be free to remain silent should he so choose and that he should be informed of his right to do so.
Analyze with reference to relevant case law.
When the police arrest a person, they should recite to him the Miranda warning. The Miranda warning or as also known as the Miranda rights mentions some of the rights that an arrested person enjoys. Such rights are the right to silence and the right to speak to an attorney. If these rights were not mentioned to the arrested person, then any of the confessions that he might have made may be excluded in their prosecution as evidence. We will look in this assignment at the Miranda rights and in particular looking at the right to silence and the right not to incriminate yourself. And we will look at some of the cases that are related to this topic.
What is the right to silence?
The right to silence is used by persons in Garda custody for a criminal offence. Where they can refuse to answer any of the questions made to them by the Garda.
The right to silence is not only a common law but it is also one of the constitutional rights. The right to silence is mentioned in Bunreacht na hEireann, or the Irish constitution in Article 38.1.
In some cases however, the legislation began to require answers to some questions in specific circumstances.
This was seen in the case of Heaney v. Ireland . Here the defendants were required to give a full account of their movements and whereabouts at a certain time as required under section 52 of the Offences against the State Act 1939. They challenged the constitutionality of this requirement arguing that it is infringing their constitutional right to silence. The Supreme Court agreed that there definitely is a constitutional right to silence and that this right derives from the freedom of expression under article 40 of the Irish Constitution.
The Supreme Court held that the right to silence was subject to some limitations and that the state has the right to intrude it in order to maintain peace and order to the public. The court showed the view that article 52 of the Offences Against the State Act 1939 was constitutional as it had acceptable balance between “any infringements of the citizen’s rights with the entitlement of the state to defend itself ” .
Similarly, the case of Rock v. Ireland also dealt with the right of silence being infringed. Here the defendants questioned the constitutionality of sections 18 and 19 of the Criminal Justice Act 1984. These sections mention the inferences that can be drawn from failure to report objects as well as their presence at a certain place, which the Garda thinks that it can be relevant to the offence that they have been arrested for. The Supreme Court once again stated that the constitutional right to silence was not absolute and that sections 18 and 19 were absolutely acceptable to the constitution.
As was seen in both these cases mentioned, Legislation plays a big part in restricting the right to silence. Apart from the legislation mentioned in the cases, section 2 and 5 of the Offences against the State Amendment Act 1998 which deals with Garda questioning and section 7 of the Criminal Justice (Drug Trafficking) Act 1996 which deals with inferences from the failure of the accused person to mention particular facts.
Although there have been times were none of the above legislation is put in practice, the right to silence is absolutely available. This can be seen in the case of People (DPP) v. Finnerty . This was a rape case, and the defendant used his right to silence and did not answer any of the questions appointed to him. The trial judge allowed the prosecution to question the defendant after his arrest on his silence, and therefore the defendant was convicted. On appeal, The Court of Criminal Appeal stated that the questioning did not impinge the defendants right to silence, as the right to silence was absolute.
The Supreme Court disagreed with the Court of Criminal Appeal and quashed the conviction stating that the defendants constitutional right to silence applied, and that it cannot be undermined by informing the jury of the defendant’s silence during questioning. The Supreme Court also stated that inferences cannot be drawn from silence.
The right to silence may not only be used during the arrest, but it can also be used in the trial itself. Article 38.1 from the Irish constitution states that “No person shall be tried on any criminal charge save in due course of law”. Here the accused can refuse to testify. Although if the accused person chooses to do so, he must answer all the questions made to him by the prosecution and shall not refuse to answer any question if he thinks that it will incriminate him.
As was stated previously. Legislation often requires the accused person to answer certain questions during the criminal investigation. When the accused is forced to answer these questions, does it mean that all the answers he gives will be used as evidence against him in the court of law? The answer would be no, here the privilege against self-incrimination kicks in.
The privilege against self-incrimination was seen in the case of Re National Irish Bank . Here some inspectors were investigating a company in connection with some criminal offences. The employees in this company refused to answer the questions given to them claiming that they didn’t have to answer these questions because they enjoyed the constitutional right to silence under the case of Heaney v. Ireland .
Here the right to silence was restricted, as the inspectors had powers that were no greater than what is required by the public. Therefore the employees had to answer the questions put forward to them by the inspectors. In this case, Justice Barrington looked at the privilege against self-incrimination in case law in order to see whether any of the information consumed by the inspector from the accused person involuntary answering the questions put to him were capable of being used against the accused in court.
The conclusion made by Justice Barrington stated that although some legislation restricted the right to silence and required the accused person to answer questions unwillingly, however these answers might not be used against him as evidence in his trial.
Immunity against self-incrimination of an accused person was made in order to avoid the risk of the accused person in providing false confessions while he is in Garda custody.
Immunity against self-incrimination has been developed in order to protect the accused from making false statements because of pressure or pain or also as well as what is known as judicial interrogation. Judicial interrogation occurs when the accused is asked questions aggressively by any police officer or a person in authority, and there he may give false statements. Justice O’Flaherty cited an early Irish text in the Supreme Court in the case of Heaney v. Ireland saying, “ our law differs from the civil law, that it will not force any which commands every man to Endeavour his own preservation and therefore pain and force may compel men to confess what is not the truth” .
In the case of DPP v. Lynch , an admission to murder was made by the appellant. The appellant in this case was questioned for 22 hours and was not allowed to sleep during that whole time and was not let talk with friends or family. These confessions were obviously obtained by unfairness and cruelty. Here the right to silence of the appellant was infringed.
The privilege against self-incrimination and the right to silence are both related to presuming that the accused person is innocent until proved otherwise. These 2 rights go hand in hand. As a matter of fact, the constitutional right to silence is often called the privilege against self-incrimination.
An Australian study stated that “the right of a suspect to refuse to answer questions put to him by criminal investigators; and the right of an accused person to choose whether or not to testify at his or her trial; and the consequences for the accused of exercising either or both of these rights; in particular, the question of whether adverse inferences can be drawn from, or adverse comments made about, the exercise of the right to refuse to answer questions and/or the right to not testify.”
Years back, Mr. Eamonn Barnes, the Director of Public Prosecutions at that time stated that the right to silence needs to be modified in the Irish common law. In Ireland and the United Kingdom the past years, trials of destroying the right to silence have been going around. They wanted to abolish the right to silence claiming that it does not work on protecting the innocent people who are accused falsely of criminal offences. When an innocent person is arrested, he or she would want to do their best in order to co-operate with the Garda during their questioning, the right to silence does not fall on their side on this. But on the other hand, the actual criminals arrested use the constitutional right to silence as an advantage.
In the case of O’Leary v. Attorney General . Here the defendant was accused to be a member of an unlawful organization. The defendant challenged the constitutionality of section 3(2) of the Offences Against the State Act 1972 and the constitutionality of section 24 of the Offences Against the State Act 1939. Both these sections dealt with the evidence found when a person was being prosecuted for being a member in an unlawful organization.
Here, the documents found in the defendants possession were obviously going to prove that he was guilty of being a member of an unlawful organization, this means that this evidence will be used against him, obviously it will cause him harm and it would be the opposite of the privilege against self-incrimination. The Supreme Court stated that if incriminating documents were found in the accused persons possessions then it should be used as evidence.
In Hardy v. Ireland the defendant had explosive material in his possession that was opposite in nature to section 4(1) of the Explosive Substances Act 1883. This act states “Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of felony, and, on conviction, shall be liable to penal servitude for a term not exceeding fourteen years, or to imprisonment for a term not exceeding two years …, and the explosive substance shall be forfeited ”.
The defendant applied to the Supreme Court after him being unsuccessful in his case in the High court. The questions applied here were whether the accused knowingly kept the explosive substances in his possession and also that if he had it in his possession, whether he was going to use it for a lawful object or not. The prosecution here will then have to prove that the defendant was using the explosive material for a lawful matter.
The explosive substances found in the defendants possession can be used to prove his guilt, so this once again is against the privilege against the self-incrimination right and against the right to silence also. The court held that once certain facts can be established then inferences can be drawn based on true facts.
A person’s refusal to answer questions put to him by the garda does not mean that the accused person is guilty. An accused person cannot be convicted of a criminal offence by solely relying on a conclusion made when the person refuses to answer the questions put to him. Although he should be allowed to have an opportunity to consult a solicitor before he refuses to answer any questions.
In a case called Saunders v. United KIngdom , The European court held that the using of powers of investigating under the British companies act was allowed to allow the public authorities to investigate fraud. The powers of investigating under the British companies act are quite similar to the Irish powers. The European court also held that the using of statements that are self-incriminating in the prosecution of a defendant is breaking the right to a fair trial.
When a person is arrested for an arrestable offence, that is an offence which an accused person can be imprisoned for 5 years or more under this offence, then inferences can be drawn from the accused persons silence. Inferences can be drawn at anytime if the accused person gets charged, they can also be drawn if the garda had told the accused person that he might be prosecuted for the offence that he is being arrested for.
Inferences can be drawn if an accused person fails to account for any object, mark or substance found in his possession, on his clothes, on his person or even in the place that the accused person was found by the Garda at the time of arresting. Inferences can also be drawn if the accused person fails to account for a certain fact that he will be relying on in his defence at trial.
Although if no other evidence was handed in to court apart from these inferences then the court cannot convict the accused person depending on the conclusions alone.
It is an offence by the accused person to not answer any of the questions put to him by the garda or to not provide certain information. This impinges the accused persons privilege against the self-incrimination and their right to silence.
The case of Quinn v. Ireland dealt with legal provisions that required accused persons under criminal suspicion to answer the questions that are to be put to them by the Garda. The European court held in Quinn v. Ireland that the right to silence and the privilege right not to incriminate yourself was not an absolute right, even though they were at knowledge that the right to silence and the right not to incriminate yourself were provided in Article 6 of the European Convention for the protection of Human Rights and the Fundamental Freedom. They think it was not absolute because they stated that it went out further than necessary to meet the needs of the state.
As a conclusion, the right to silence and the privilege against self-incrimination are both constitutional rights and are available to all the accused persons and they should all be made aware of it during their arrest. Although the right to silence can allow inferences to be drawn against the accused at times, but it can also be very helpful, just so an accused person doesn’t end up getting themselves into more trouble than they already are in.
•Cecilia Ni Choileain, Criminal Law, (Round Hall Nutshells, Thomson Round Hall, Dublin 2006)
•Peter Charleton, P.A McDermott and M. Bolger, Criminal Law, (Butterworths Ireland Ltd, Dublin 1999)
•T.J McIntyre and Sinead McMullan, Criminal Law, (Essential Law Texts, Sweet and Maxwell, London 2001)
•Vicky Conway, Yvonne Daly and Jennifer Schweppe, Irish Criminal Justice, (Clarus Press Ltd, Dublin 2010)
•T.J McIntyre and Sinead McMullan, Criminal Law, (Essential Law Texts, 2nd Ed, Sweet and Maxwell, London 2005)
•Fergus W. Ryan, Constitutional Law, (Round Hall Nutshells, 2nd Ed, Dublin 2008)
Articles: •Siun Leonowicz “The Privilege against self incrimination” (2005) 23 ILT 77 •“The Right to Silence” (1991) 9 ILT 269
Citizens Information on the Right to Silence: http://www.citizensinformation.ie/en/justice/arrests/right_to_silence_in_criminal_cases.html