I. Introduction
Section 19A of the Criminal Justice Act 2007 (hereinafter 2007 Act) is a key component of an extensive legislative encroachment on the right to silence in the pre-trial context, whereby the silence of an accused may be admissible at trial as corroborative evidence. In recent years, the Oireachtas has progressively enacted legislation circumscribing the scope of the right to silence in terms analogous to section 19A, such as section 5 of the Offences Against the State Act 1998 and section 7 of the Criminal Justice Drug Trafficking Act 1996 (both repealed by the 2007 Act). However, section 19A is distinctive in a number of aspects. It is broader in nature as it permits the courts to draw adverse inferences, (subject to compliance with its provisions) in relation to all arrestable offences. Further, in contrast to the aforementioned Acts, it contains further significant safeguards of the individual’s right to silence.
With this in mind, this essay aims to critically assess Irish law vis-à-vis the drawing of inferences at trial under section 19A. In doing this, it shall briefly set out the constitutional protection of the right to silence. It shall examine the practical implications of the phraseology of section 19A for the courts, the police and the accused and how these implications affect the balance of the section itself. It shall also consider the effect of the caution, the right to consult a lawyer and the requirement of/to? electronically record the questioning, as concomitant elements in the safeguarding of the right to silence. In these assessments it shall have recourse to the case law of the European Court of Human Rights (hereinafter ECtHR) and judgments pertaining to sections 18 and 19 of the 2007 Act given that the protections provided therein are identical and qualifications comparable to those in section 19A, and thus, shall provide appropriate guidance as to the interpretation of section 19A.
II. Background
The right to silence is continuously recognised as being of intrinsic value to, inter alia, the protection of the dignity and autonomy of the individual, the presumption of innocence, and the prevention of abuse of power. It was formulated at common law as a privilege against self-incrimination. Subsequently, the Supreme Court in Heaney v Ireland recognised the right to silence as a corollary to the right to freedom of expression under Article 40.6.1°. In Re National Bank, the right to silence in custodial detention was located within the right to a trial in due course of law under Article 38.1.
In recent years however, both the Irish Courts and the ECtHR have recognised that the right may be permissibly qualified, provided that sufficient safeguards are afforded to the individual. Thus, in Rock v Ireland , the courts assessment of the proportionality of sections 18 and 19 of the Criminal Justice Act 1984, focused on the two main safeguards provided for under the legislation, which were held to provide sufficient protection to the constitutional right to silence. Firstly, inference could not form the sole or main basis of a conviction. Secondly, only such inferences ‘as appear proper’ could be drawn. These safeguards have been incorporated in section 19A.
Thus, it is against this backdrop, that we may examine section 19A of the 2007 Act.
III. The Qualifications on the Right to Silence.
a) Arrestable Offences
Of notable significance from the perspective of the individual’s rights under section 19A(1), is that inferences may be drawn in relation to all arrestable offences. The court in DPP v Bolger, accepted the trial judges interpretation of the meaning of the term ‘arrestable offence’ in relation to section 18, 19 and 19A, as permitting the admission of evidence under, inter alia, section 19A at trial where the accused was arrested for one offence but convicted of a different one. It held that there was no basis for concluding ‘that the applicant would have acted any differently had he been given a separate but identical warning for the murder charge,’ as he had refused to answer ‘less serious but associated firearms’ matters. Important to the courts reasoning was the fact that it was clear from the interview that the applicant understood the implications of his silence.
However, one issue that arises from this judgment is that the court is permitting itself to attribute a specific status to the mind of the accused at the time of the questioning. It was permissible in this case due to the fact that Mr Bolger had actively sought to understand the section. However, it is not clear how the court may, with any degree of certainty, imply precisely what the accused understood in all cases.
Secondly, this judgment may have a multitude of consequences for an accused. The accused in the Bolger was very closely connected with the murder charge, as he drove the getaway car. However, in other cases, if such a broad interpretation was adopted, inferences may be drawn at trial where the accused was arrested for one offence, legitimately questioned in relation to another offence, but, in a situation where they had no knowledge of the offence with which they were ultimately charged with and refused to answer questions. It is to be questioned whether, in such a situation it can be said that such facts clearly call for an explanation as required under section 19A(1)(b). However, it is submitted that the phrase ‘clearly called for an explanation’ raises further ambiguity. For example, if the accused is charged with one offence and is legitimately questioned in relation to an associated crime, this may be considered a fact which clearly called for an explanation given the close connection which existed in the circumstances of the situation.
Further, if one looks to the wording of section 19A more specifically, it does not necessarily support the courts reasoning in Bolger, similarly noted in DPP v Alan Wilson. Section 19A(1) and subsections (a) and (b) set out the material scope of the section. They state that where the proceedings are for an arrestable offence, at any time before the accused is charged, or when being charged or informed of a potential charge, ‘in relation to the offence’ they may be required to mention certain facts. This phrasing implies that the accused is arrested, questioned, warned and charged in relation to the same offence. Thus, it is contended that it is not precisely clear from this wording, that the questioning and therefore the answers (or lack thereof) of the accused, are admissible at a trial for a charge different from that which the accused was arrested for and warned about.
In order to sufficiently protect the accused’s rights in relation to the aforementioned issues, it is submitted that the accused should receive separate warnings when the Gardaí begin to believe that the accused is involved in a number of different criminal activities where section 19A may be relevant. Such a requirement would not obstruct the Gardaí in their investigation and is not overly burdensome on their time and it would have the protection of informing the accused that such inferences may thus be drawn in relation to different offences at trial.
This decision in Bolger has been granted leave for appeal to the Supreme Court in the case of DPP v Alan Wilson. This is to be welcomed, as it will bring greater clarity to the ambiguity that is inherent in the wording of section 19A(1).
b) Incursions Antecedent to Custodial Detention?
It is evident from the wording of section 19A, that its geographical scope may be considerably more extensive than mere custodial detention. It may apply to an individual questioned by the guards at any time before he or she is charged. Thus, the Gardaí are permitted to invoke section 19A in a public context. However, O’Donnell J noted in Fitzpatrick v DPP that it is difficult to see how ‘the right to a reasonable opportunity to consult a solicitor provided for under section 19A(3)(b) could operate in such circumstances.’
It is contended that the intention of the legislature here may have been to gain greater co-operation from individuals who are questioned by the Gardaí in a broader range of contexts and providing an extension of their coercive powers to earlier stages in their investigation. However, it is fundamentally unclear how this proviso could work in practice, particularly with regard to the requirements of legal consultation and the recording of interviews. Further, it may ultimately discourage the police from invoking the section in such scenarios, rendering the provision less efficacious.
c) Failure to mention any fact which clearly called for an explanation in the circumstances
In DPP v MacCarthaigh, it was held that under sections 18 and 19 of the 2007 Act, the accused is obliged to ‘engage in a meaningful way with’ the questions posed by Gardaí in order to avoid the drawing of adverse inferences. Further, the court was cognisant of the fact that the relevant answers of the accused occurred after legal consultation. It is submitted that this holding is particularly cogent given the terms of section 19A(5), whereby the courts are entitled to have regard to when the concerned fact was first mentioned by the accused when drawing inferences. Further, in DPP v Devlin the court held that the ‘failure or refusal’ standard within section 18 (the same as section 19A(1)(b)), is not met ‘where an account of any kind has been given.’ It is contended that it is clear from these judgments that the courts are willing to undertake a detailed contextual analysis under section 19A(1)(b) of the exact answers of the accused, the specific timing and context of those answers within the interview as whole. This is to be welcomed as the courts are alert to potential attempts by the accused to ‘evade the implications’ of the section through their answers while also balancing this against situations where the prosecution cherry pick elements of the interview for their request under section 19A. It is submitted that these judgments appropriately balance the efficacy of the section, while preventing arbitrary interference with the rights of the accused.
Fennell has noted that issues may arise as to whether sufficient opportunity to volunteer relevant information was afforded to the accused. While no case has arisen where this specific issue has been raised, it is respectfully submitted that a requirement that sufficient opportunity be afforded to the accused during questioning is appropriate, given that the contrapositive could result in potential abuse of power by the police. One may infer from the aforementioned cases that the courts are undertaking detailed analysis of the exact answers of the accused and their timing, thus, it is contended that provision for sufficient time to the accused is inherent to a rational analysis by the court.
Finally, the inclusion of the requirement that the fact ‘clearly called for an explanation’ in section 19A(1)(b) is likely adopted from the ECtHR judgment of Murray v UK. It is submitted, that this standard requires contextual analysis, given that the court must look at the circumstances existing at the time when determining whether a fact clearly called for an explanation. It is contended that this requirement can assist the court in preventing the illegitimate use of the section as a coercive force in interviews, where the circumstances did not clearly call for an explanation, while also preventing the accused from benefitting at trial in their defence where they failed to address salient issues in the pre-trial context.
III. The Safeguards
a) The Caution
Section 19A(3)(a) requires that if adverse inferences are to be drawn under section 19A, the accused must be cautioned in ordinary language as to the implication of their silence under the section, when being questioned, charged or informed. Firstly, it is submitted that the caution must be provided at or around the time the accused begins to refuse or fail to answer questions in relation to any fact which clearly calls for an explanation, not afterwards. Thus, the police would not be entitled wait as the accused remains silent during questioning, only then invoking section 19A, as this would render the informative safeguard, nugatory.
Section 32 of the 2007 Act permits the Minister to ‘make regulations providing for the administration of cautions.’ However, no such regulations have been enacted. Rules 2,3,4 and 5 of the Judges Rules state that the accused must be cautioned that he is not obliged to answer any question when charged and when making a statement. These Rules provide guidance to the court but the court retains discretion over whether it is to be admitted. Further, the Rules do not require the Gardai to caution the accused when merely questioning or informing them that they may be prosecuted, unlike section 19A. Thus, not only does section 19A require the Gardaí to inform the individual of the new legal standards, it also requires them to do so in novel contexts. It is to be lamented that the nuances of the wording of section 19A have not been accommodated for in a newly mandated caution, which may also address the novel contexts in which it will operate. Thus, it is respectfully submitted this is a wholly insufficient lacuna in the law and given the constitutional status of this right and its centrality to the protection of a trial in due course of law.
b) Reasonable Opportunity to Consult a Solicitor
The pre-trial investigative stage is a crucial period for the gathering of confessions and other relevant evidence. The robust safeguard of legal consultation during this period is thus, an essential safeguard of the rights of the accused who is in a particularly vulnerable position due to the onerous nature of detention. In DPP v Gormley, the court held that under Article 38.1, an accused where they so request is entitled to access to a lawyer before questioning is permitted. This decision has bolstered the protection afforded by section 19A(3)(b), which only requires a reasonable opportunity to consult a solicitor. It is submitted that this subsection is likely to be interpreted as requiring the same standard as Gormley in future. This is a welcomed decision in order to protect the right of the accused to be informed of the implications of section 19A and for ensuring a fair trial, particularly in light of the ECtHR decision of Salduz v Turkey. However, if the accused does not so request, Fitzpatrick v DPP and section 19A(3)(b) provide further protection. The court in Fitzpatrick found that the protection afforded by section 18(3)(b), required the accused to be entitled to reasonable access to consult his solicitor ‘at or around the same time as the request for an account’ is made and may be satisfied where the opportunity to consult is provided when the accused is informed that the section ‘may be invoked.’ It is submitted that this interpretation is welcomed given that it is alive to the protection of the individual rights in custody.
Fennell has noted that issues may arise where the accused chooses to remain silent as a result of legal advice. In Condron v The United Kingdom, the ECtHR held that there was a violation of Article 6(1) as the judge failed to direct the jury to consider whether the defendant’s assertion that he remained silence as a result of legal advice was genuine. The court held ‘that the trial judge had not restricted the jury to drawing an inference if they were satisfied that the accused had no answer or none that would stand up scrutiny,’ and importantly the jury must be ‘directed to take legal advice into account when deciding whether the situation clearly called for an explanation.’ However, in Bolger, the court distinguished that case from Condron on the ground that there was no basis in evidence that ‘the applicant would have acted differently but for the advice received by him,’ as the applicant was silent before legal advice. However, this may be an arbitrary standard in future application, as an accused may remain silent as they are in shock or nervous, and upon legal advice they decide to continue remaining silent. This highlights the very problematic issue of attributing a status to the mind of accused at a later date. It is thus, unfortunate that section 19A is silent as to the relevance of legal advice in the drawing of adverse inferences. It is respectfully submitted, that section 19A thus reflects a position whereby there is no adequate reason for an innocent person to remain silent.
d) Recording by Electronic or Similar Means
It is submitted that this protection is particularly robust, as it will allow the court to listen to the words and potentially view the demeanour of both the accused and the Gardaí throughout the interview. However, it is unfortunate that it does not require video recording explicitly, as this would allow the judge to view the demeanour of the accused and Gardai in all cases. Although obiter dicta, Hardiman J in Gormley, stated that in every formal stage of detention ‘should be both audio and video-recorded,’ and that any such failure requires an explanation. However, under section 19A such an explanation can only be consent of the accused. This raises the issue of where there is a dispute as to consent, the court shall have no way viewing or listening to the confirmation of the consent. Thus, it is unfortunate that it can be derogated from as this removes some of the robustness.
V. Conclusion
It is submitted, that on the whole, the drawing of adverse inferences is antithetical to the full protection of the right to silence of the accused. Section 19A does not automatically give rise to a guilty conviction and the accused remains free to stay silent. Overall it is submitted that section 19A hints at a return to the previous common law position, whereby it was believed that only the guilty benefited from the privilege against self-incrimination, despite that fact that there are legitimate situations where ‘silence is perfectly consistent with innocence.’
The section incorporates the requirements of the 1984 Act, that such inferences shall not be the sole or main reason for conviction and that the court is only permitted to draw adverse inferences as appear proper. It does however, include further safeguards such as the electronic recording of interviews and right to reasonable opportunity to legal consultation, which is to be applauded. As noted by Daly, it is expected that section 19A shall be held constitutional, given the decision in Rock v Ireland, and the aforementioned heightened safeguards. However, it remains to be seen how often section 19A shall be invoked by the Gardaí and to what extent the court will interpret its provisions. However, it is likely that the courts will look to the decisions under sections 18 and 19 and therefore they provide illuminating analysis of the safeguards and qualifications provided under section 19A as elucidated in this essay.
It is to be lamented and highlighted that the section itself has quite a degree of lack of clarity and much shall depend on the courts interpretation of its meaning, particularly relating to the use of interviews at trial where the accused is arrested for one offence and charged with a different one, the meaning of what clearly calls for an explanation. However, the courts have been undertaking detailed analysis of the specific circumstances of the case and this is positive. There is further lack of clarity as to how the section shall operate in a public context as it clearly envisages. It is also that section 32 has not been utilised to administer a standard caution.
If one looks to the balance of section 19A, one may question to what extent the right to silence remains a substantive right subsequent to the enactment of section 19A despite its safeguards, as may ultimately restrict the free choice to remain silent in a very broad number of cases.