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

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 suspect’s 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.

When you say nothing at all: Invoking inferences from suspect silence in the police station

“…Most notably, in the context of this article, Ireland has not opted in to Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence, or indeed to Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. The Irish Department of Justice appears to believe that the existence of Ireland's legislative inferences makes it impossible for the state to fulfil the terms of Directive 2012/13/EU (Daly, 2021), but this is not without question. Commentators (Pivaty et al 2021) have observed that the final wording of Directive 2012/13/EU allows for a number of possible interpretations such that its asserted prohibition on the use of adverse inference might not be as definitive as originally foreseen when the Directive was first considered.…”

“…Commentators (Pivaty et al 2021) have observed that the final wording of Directive 2012/13/EU allows for a number of possible interpretations such that its asserted prohibition on the use of adverse inference might not be as definitive as originally foreseen when the Directive was first considered. In discussing the need to continue those provisions in operation the Irish Minister for Justice and Equality stated in 2019 that such provisions are ‘a key tool in the investigation and prosecution of serious crime’ 41 (Daly, 2021).…”

“…Concerns have been raised in a number of studies about police officers’ actual understanding the terms of the caution, and their concomitant ability to explain its meaning to a suspect who might not understand (Blackstock et al, 2014: 378–380; Clare et al, 1998: 326; Quirk, 2017: 62–67; Skinns, 2019: 118). 37 Other studies have highlighted a lack of comprehension or ability to adequately explain the caution amongst legal advisers (Quirk, 2017: 65), suspects (Pivaty, 2019) and the general public (Clare et al, 1998; Fenner et al, 2002; Shepherd et al, 1995; Weaver, 1994).…”