Interesting lecture on the fifth amendment

Sparks

Courtesy of youtube, a very good and very interesting lecture on the fifth amendment in the US. Basic synopsis - never, ever, under any circumstances whatsoever, for any reason, should you talk to the police. I was wondering, how would that advice translate when you go from the US to here?

https://www.youtube.com/watch?v=i8z7NC5sgik

https://www.youtube.com/watch?v=08fZQWjDVKE

IRLConor

Well, there's at least the "inferences may be drawn" bits in the Criminal Justice Act, 2007 which could make it advantageous to talk to the Gardai in some circumstances.

There's also section 52 of the Offences Against the State Act, 1939 where not accounting for your movements and actions could send you to jail. If by accounting for your movements and actions you don't incriminate yourself then you could be better off doing so.

dothis

It's a very interesting video. In Ireland you have the right to silence and the right not to incriminate yourself. These are recognised by Art 38.1 of the Constitution and Art 6 of the European Convention on Human Rights.

The scope of this right will operate more vigarously the graver the offence charged.

You are also required to be given what is refered to as a caution similar to the Maranda refered to in the video it goes

"You are not obliged to say anything unless you wish to do so, but anything you say will be taken down in writing and may be given in evidence."

You have the right to legal advice but, this does not necessarily apply to having a solicitor present before being questioned or while questioning is happening. Altough the accused is entitled access to a solicitor as to permit him to "make a truly free decision..."

And as was said above there are some implications to silence that I would have a concern over.

johnnyskeleton

It really depends on what you're going to say, but as a general rule yes, it's best to stay silent.

After all, what appears to have convicted Joe O'Reilly is that his account of his movements was apparently in contradition with his mobile phone location (and even still, apparently the accuracy of the phone triangulation was very doubtful).

On the other hand, the most common example of when it is good to give a statement is a rape trial where consent is the issue and the accused does not want to give oral evidence. Here, a contradictory version of events is put before the jury, and they will look at the complainant and decide whether she might have consented. That, plus a careful cross examination will often lead to acquittal.

For crimes like burglary and robbery, the gardai are very often relying entirely on the confession to bring a prosecution, and the amount of people who are convicted purely on a confession is disturbing.

IRLConor

dothis wrote: »

It's a very interesting video. In Ireland you have the right to silence and the right not to incriminate yourself. These are recognised by Art 38.1 of the Constitution

The entire text of 38.1 is:

No person shall be tried on any criminal charge save in due course of law.

Is the right to silence and to not incriminate yourself a matter of case law based on this? Does this mean it could be overturned at any time?

Our man in Havana

The constitution could be suspended at any time. So yes it could be overturned.

As said earlier for minor offences the Gardaí will often have nothing going into an interview and rely totally on a confession. In such situations total silence is the way to go.

Sparks

As I understand it, we do not have a right to silence. We certainly don't have an enumerated right as in the US. And in some cases silence counts against you, as Conor said.

Our man in Havana

Whilst there may be nothing in Irish law, I am sure the European courts have found you do have a right to silence.

I would find it hard to see how an adverse inference could be drawn from staying silent esp where the Gardaí have no evidence whatsoever?
Hypothetical situation: A house is burgled and a man is found walking down the road nearby. He is arrested. In the interview he refuses to answer any questions whatsoever because he was having an affair with a women up the road. The Gardaí don't know this of course. The Gardaí have no physical evidence to tie him to the crime. I don't see how his silence can be used against him.

Johnny Utah

IRLConor wrote: »

There's also section 52 of the Offences Against the State Act, 1939 where not accounting for your movements and actions could send you to jail. If by accounting for your movements and actions you don't incriminate yourself then you could be better off doing so.

I remember one constitutional lecturer commenting that sec 52 is no longer used by Gardai because of ECtHR judgment- (Heaney + McGuinness I think) - could be potentially unconstitutional.

IRLConor

Johnny Utah wrote: »

I remember one constitutional lecturer commenting that sec 52 is no longer used by Gardai because of ECtHR judgment- (Heaney + McGuinness I think) - could be potentially unconstitutional.

Ah, that case would be a bit of a problem, true.

They did try to fix some of the problems raised in the Heaney case in the High and/or Supreme court(s) in the 1998 amendment to the OASA as far as I can see.

IRLConor

Bond-007 wrote: »

I would find it hard to see how an adverse inference could be drawn from staying silent esp where the Gardaí have no evidence whatsoever?
Hypothetical situation: A house is burgled and a man is found walking down the road nearby. He is arrested. In the interview he refuses to answer any questions whatsoever because he was having an affair with a women up the road. The Gardaí don't know this of course. The Gardaí have no physical evidence to tie him to the crime. I don't see how his silence can be used against him.

The "inferences may be drawn" bit says* that if you refuse to talk about something which you later rely upon for your defence that an inference may be drawn from the fact that you remained silent. The circumstances in which that inference may be drawn are quite specific and couldn't be used to convict in your example above due to subsection 2 below.

The text of it is as follows:

18.—

1. Where in any proceedings against a person for an
   arrestable offence evidence is given that the accused—
   1. at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
   2. when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it, was requested by the member to account for any object, substance or mark, or any mark on any such object, that was—
      1. on his or her person,
      2. in or on his or her clothing or footwear,
      3. otherwise in his or her possession, or
      4. in any place in which he or she was during any specified period,
      and which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.
2. A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for a matter to which subsection (1) applies.
3. Subsection (1) shall not have effect unless—
   1. the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and
   2. the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.
4. Nothing in this section shall, in any proceedings—
   1. prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,
   2. be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this
      section, or
   3. be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear which could properly be drawn apart from this section.
5. The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of the matter concerned was first given by the accused.
6. This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
7. Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.
8. References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
9. In this section ‘arrestable offence’ has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.

* Roughly, as far as my non-lawyerly eyes see it.

dothis

IRLConor wrote: »

The entire text of 38.1 is:



Is the right to silence and to not incriminate yourself a matter of case law based on this? Does this mean it could be overturned at any time?

Yes, the Right to not incriminate yourself is first found in the case of The State(McCarty) v. Lennon 1936 IR 485. It was also approved in The People (DPP) v. Walsh and McGowan Unreported Jan 1977. I can't think of any more recent case law off the top of my head. But, when I get a chance to look it up I will.

It is open to being over-ruled by the Courts but, what is more likely to happen is a slow chipping away at it rather than a radical over-ruling.

Victor

In Ireland, I thought those rights (right to silence, can't give evidence against a spouse, etc.) were in the Court Rules.

johnnyskeleton

Victor wrote: »

In Ireland, I thought those rights (right to silence, can't give evidence against a spouse, etc.) were in the Court Rules.

They are rules of evidence (although you can give evidence against a spouse in domestic violence cases), but the right to silence is a fundamental ingredient in a fair trial (guaranteed by Article 38) and has been elevated to a constitutional right (DPP v. Finnerty [1999] 4 IR 364).

I think the right to silence stems from the right against self incrimination which itself stems from the presumption of innocence, so it's fairly fundamental to a fair trial.