The Right to Silence

I received my copy of the Balance in the Criminal Law Review Group’s Interim Report but did not have an opportunity to read it before now. As I understand it, I received a copy because I made a submission, which is a civilized response, although tempered by the absence of an invitation to make more submissions. Nevertheless, I enjoyed reading the Interim Report.

It certainly carries an air of authority and no clearly visible axe to grind, as we might understandably perceive in the case of the Minister for Justice Equality and Law Reform (the Tanaiste) producing such a document.

Firstly, its provisional recommendations:

a) It recommends change, it says;
b) It rejects any idea that an accused be compelled to answer questions (even certain questions) (even with the proviso that the reply be inadmissible as evidence against the accused).
c) It adjourns to the Final Report an idea that the prosecution be permitted to comment on an accused person’s failure to give evidence and to permit the [judge/jury] to draw an adverse inference from such failure or to comment on such failure [by the judge?].
d) It rejects any idea that an accused person’s silence under interrogation be corroborative of guilt.
e) It recommends the idea that an adverse inference be permissible where the accused has failed to previously mention the defence on which s/he ultimately relies.
f) It adjourns to the Final Report an idea that the prosecution adduce videotape evidence of the police interview/s with the accused.
g) It recommends the reform of the provisions currently permitting adverse inferences to be drawn from the accused person’s failure to account for suspicious circumstances.
h) It recommends the reform of the Judges’ Rules.

The Group recites the circumstances of its foundation, the making of a speech by the Minister for Justice Equality and Law Reform (the Tanaiste). It fails, however, to reflect on the possibility that there might be more propitious circumstances and/or more suitable bodies to examine the issues in their remit. It recites no effort to discover instances of failure of a prosecution indicating the need to undertake the review in hand. Furthermore, and most tellingly, it fails, save in the most cursory way, to consider justifications for modes of response of accused persons to their prosecution. In fact, it appears to accept that to make no response is, per se, unjustified.

The clear objective of the Report, to shift a burden from the prosecution, although accompanied by formal concessions of the right to silence, shows a grudging acceptance of that right and an intention to attenuate it by reformulation, essentially, of the burden of proof on the prosecution. This can be seen to a greater or lesser extent in each of the above positions of the Group:

a) No need for comment currently;
b) This establishes credentials on the right to silence. It concedes the validity of the right, but given the weight of authority for that right cited by the Group, to do otherwise would be difficult;
c) It clearly intends to advocate provision for adverse comment by the prosecution on an accused person’s failure to give evidence and to permit the [judge/jury] to draw an adverse inference from such failure or to comment on such failure by the judge. Of course, this is a recognition that a criminal trial, no less than a civil trial, is an adversarial contest, but it is done in a context where the objective is, it would appear, to change the rules in favour of the prosecution. This is, in essence, evidence of a desire to attenuate the right to silence by reducing the burden on the prosecution and transferring the onus of proof, to some degree, to the accused.
d) This, again, acknowledges the right to silence.
e) Again, this is, in essence, evidence of a desire to attenuate the right to silence by reducing the burden on the prosecution and transferring the onus of proof, to some degree, to the accused. What lies behind the positions in c) and e) is the, here, unexpressed idea that “innocent people have no need to claim the right to remain silentâ€?. This is in fact, not true and has been judicially acknowledged to be untrue and has been shown by experience not to be true.
f) The fundamental justification for the recording of police interviews/interrogations (by sound or vision) is to ensure the absence of abuse in the conduct or record making of such events. Any recommendation that visual records be made address the protections of accused persons not the concerns of the prosecution. It is a pity the Group did not show its inclinations on the issue now;
g) The stated reason for the need for reform is the, apparently, impractical and incomplete nature of the current provisions. All of this seems to miss the obvious; if someone lies about an issue, having received a proper caution (see below), that can (and surely will) be given in evidence by the police officer. The difference between this and what the Group advocate is that, if the Group’s recommendation is adopted, this will not simply be taken into account by the jury/judge, but instead, a statutorily mandated inference of guilt will arise and be applied, reducing the role of the finder of fact (jury/judge) in making the judgment of guilt or innocence.
h) The Judge’s Rules certainly need reform. It can never have been right to have a set of Rules established by judges (as recorded in R. v Voisin [1918 1 KB 531) where the Rules did not have the force of law. The situation gave rise to circumstances where the judges had adopted an “administrativeâ€? role in prescribing the proper conduct of the police. This, surely, was a failure to observe the division of powers under the Irish Constitution.

The Group made no reference to any instance of a prosecution failure, giving rise to the anxiety about the right to silence. Significantly, it also fails to clearly or fully address the justifications for an accused person to avail of the right to silence on being questioned. It appears to subscribe, without explicitly saying so, to the view that “innocent persons have no need to claim the right to silenceâ€?. This is not true and has been recognised judicially not to be true and has been shown not to be true by experience. Adverse comment on a defendant’s stance at trial is a blow on behalf of the prosecution. What kind of evidence makes up a prosecution case where the prosecution needs to criticise a defence to prevail?

Underlying much of this is a confidence that the human mind or psyche is amenable to being divined by the office of the Director of Prosecutions (or any Garda). This cannot be true. The human mind is a mystery, but even the history of a person is frequently unknown not least to the person him/her self.

One is slightly surprised at the absence of reference to technical applications apparently able to detect a lie. See HERE

Even in the case of a gorilla we have this difficulty. See HERE
and HERE. Koko the San Francisco Zoo gorilla (a female) has, apparently been taught to speak by sign language, with some unfortunate results. What would the caution be for Koko, or what would the interrogation be like?