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

Published date01 September 2021
Date01 September 2021
DOI10.1177/20322844211028308
Subject MatterArticles
Article
New Journal of European Criminal Law
2021, Vol. 12(3) 347364
© The Author(s) 2021
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DOI: 10.1177/20322844211028308
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Ireland: Curtailment of the
right to silence through
statutory adverse inferences
Yvonne M. Daly
School of Law and Government, Dublin City University, Ireland
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 suspects 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.
Keywords
Directive 2016/343, Directive 2013/48, right to silence, adverse inferences, Ireland, police
interrogation, right to legal assistance
Introduction
While the right to silence is recognised as being protected in Ireland under both the Irish Con-
stitution 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
Corresponding author:
Yvonne M. Daly, School of Law and Government, Dublin City University, Glasnevin, Dublin 9, Dublin, Ireland.
Email: yvonne.daly@dcu.ie
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 eviden ce 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 h ´
Eireann (the Constitution of Ireland) 1937.
Certain articles of the Constitution are overtly and specif‌ically relevant to the criminal proces s, and
the so-called Doctrine of Unenumerated Rights, which emerged in the mid-1960s, has allowed for
the judicial discoveryof 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 inapproach 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 noticeof the Convention and the juris-
prudence 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 states
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.
1. Carmody v Minster for Justice [2010] 1 IR 635.
348 New Journal of European Criminal Law 12(3)

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