When you say nothing at all: Invoking inferences from suspect silence in the police station
| Published date | 01 July 2022 |
| Author | Yvonne Daly,Ciara Dowd,Aimée Muirhead |
| Date | 01 July 2022 |
| DOI | 10.1177/13657127221104649 |
| Subject Matter | Articles |
When you say nothing at all: Invoking
inferences from suspect silence in
the police station
Yvonne Daly
Dublin City University, Dublin, Ireland
Ciara Dowd
Barrister at Law, Dublin, Ireland
Aimée Muirhead
Independent Researcher, Dublin, Ireland
Abstract
Drawing on qualitative research with criminal justice professionals, this article explores the
practical operation of provisions allowing for inferences to be drawn from silence at the
point of police questioning in Ireland. The article examines (1) pre-interview disclosure and
the timing of the invocation of inferences within the detention period; (2) the manner in
which suspects are informed about the possible consequences of any failure to answer ques-
tions or mention certain facts; and, (3) the value and impact of inferences at trial. Findings
include the need to reconsider the late disclosure approach adopted to police interrogation
in Ireland, while maintaining separate inference interviews; difficulties with the current ‘ordin-
ary language’examples used to explain inference provisions to suspects; and, a notable distinc-
tion between the use of inferences in particular courts in the Irish criminal process.
Keywords
disclosure, inferences, police interrogation, privilege against self-incrimination, right to silence
Introduction
Legislative provisions allowing for inferences to be drawn at trial from the failure of a suspect
1
to answer
certain questions or mention certain matters during pre-trial investigative interviews with police exist in a
Corresponding author:
Yvonne Daly, School of Law and Government, Dublin City University, Dublin, Ireland.
Email: Yvonne.Daly@dcu.ie
1 Forconsistency, we use the term ‘suspect’throughout this article to refer to all persons suspected or accused of a criminal offence,
who are subject to a criminal investigation or accused in the context of a criminal trial.
Article
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Evidence & Proof
2022, Vol. 26(3) 249–270
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DOI: 10.1177/ 13657127221104649
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number of jurisdictions.
2
While those in operation in England and Wales are perhaps most well-known,
they are not the only operational inference provisions. In Ireland a set of legislative provisions allows for
inferences to be drawn in a number of specific circumstances, as fully outlined later. Indeed, the original
Irish inference provisions (which have since been extended and amended) pre-dated the introduction of
similar provisions in Northern Ireland by four years and in England and Wales by ten years.
3
In each jurisdiction where such provisions exist, the courts have had to consider their operation, both
in the police station and at trial. When is it fair to invite the jury to potentially draw an inference from
silence? Do specific questions need to be put to the suspect in order to later attach evidential value to
a failure to answer?
4
Can an inference be avoided if the reason for silence is the suspect’s legal
advice?
5
Can an inference be drawn against a suspect in relation to a particular offence where they
were originally arrested and detained in regard to another?
6
Can an inference be avoided by a suspect
giving any account of matters, no matter how implausible?
7
In this article we consider three significant aspects of the practical operation of inference provisions at
the point of police detention and questioning in Ireland. First, we examine the timing of the invocation of
inferences within the detention period, and the related issue of pre-inference interview disclosure.
Secondly, we explore the manner in which suspects are warned or informed that a failure to answer ques-
tions or mention certain facts at the pre-trial interview might lead to the drawing of an inference at trial.
Finally, we consider the value and impact of inferences at trial, before drawing the article to a conclusion
with some observations and recommendations for reform.
The article draws on qualitative interviews conducted with professionals working across the criminal
process in Ireland. These interviews were conducted as part of an EU-funded project known as
‘EmpRiSe: Right to silence and related rights in pre-trial suspects’interrogations in the EU: Legal and
empirical study and promoting best practice’which examined the right to silence in police interrogations
in Belgium, Italy, the Netherlands and Ireland. Of those jurisdictions Ireland is the only one with a legis-
lative inference-drawing regime.
8
However, this does not mean that trial courts in other jurisdictions are
oblivious to suspect reliance on silence in the pre-trial period or carefully avoid attaching any evidential
value to same. In fact, research within the EmpRiSe project suggested that pre-trial silence quite often has
at least some evidential purpose within criminal trials in a number of jurisdictions, whether that be to
undermine the credibility of a defence, to corroborate or support other evidence in the case, to assist
the interpretation of other evidence, or to validate the prosecution case in the absence of a counter-
narrative from the defence (Daly et al., 2021b). In the absence of legislation, however, suspects detained
for questioning in such jurisdictions are not routinely warned of the potential trial significance of their
pre-trial silence.
9
One benefit of the legislative provision for inferences is that their operation is at
least transparent, and a relevant caution or explanation must be provided at the pre-trial interrogation
stage to allow for their later use at trial. Nonetheless, it should be remembered that inferences are a
2 England and Wales, Ireland, Northern Ireland, Singapore and parts of Australia. See Daly (2014); Tan (1997); Jackson (2001);
Dixon and Cowdery (2013).
3 Arts 3, 5 and 6 of the Criminal Evidence (Northern Ireland) Order 1998 are nearly identical to ss. 34, 36, and 37 CJPOA 1994,
respectively. The English provisions were modelled on the Northern Irish provisions, and the Northern Irish provisions were
based on ss. 18 and 19 of the Irish Criminal Justice Act 1984. See Jackson (2001: 134).
4 See RvGreen [2019] EWCA Crim 411; 2019 4 WLR 80 and RvHarewood and Rehman [2021] EWCA Crim 1936 (25
November 2021).
8 See further Beazley and Pivaty (2021).
9 On the operation and impact of Directive 2016/343/EU onthe strengthening of certain aspects of the presumption of innocence
and of the right to be present at the trial in criminal proceedings see further Pivaty et al. (2021).
250 The International Journal of Evidence & Proof 26(3)
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