Silence being used against you during Garda Questioning

Hogzy

(All Names are hypothetical for the purpose of the question)

If Bill is arrested for burglary after being caught in the vicinity of a burgled house with a screw driver, balaclava etc etc. He is brought to the Garda station and informed of his right to seek a solicitor. A solicitor is called but doesnt arrive for one hour. In the mean time bill is questioned by the Gardai but stays silent.

Can the prosecution use Bills silence against him? Or does Bill need to have consulted with his solicitor first before the silence can be used against him in Court.
I know there must be legislation in place before silence can be used against an individual.

I am getting a little confused in my studies

Victor

Silence can only be used against an accused in a limited number of circumstances, e.g. special offences and alibis.

ResearchWill

Part 4 of the criminal justice act 2007 sets out most of what you want. In each relevant section I beleve it states as follows "(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred."

The question would be was Bill afforded a reasonable opportunity to consult with his solicitor.

Predalien

Inferences can not be drawn from silence unless the accused has had reasonable opportunity to consult with a solicitor beforehand.

Pat Mustard

http://www.irishstatutebook.ie/2007/en/act/pub/0029/index.html

Just in case you didn't have the legislation.

(I see now someone else has already mentioned the relevant legislation, but anyways)

Hogzy

Thanks folks. So to answer the question: It does seem that inferences can only be drawn from Bills silence if he has had prior consultation with a solicitor/legal advisor.

Thanks

ResearchWill

Hogzy wrote: »

Thanks folks. So to answer the question: It does seem that inferences can only be drawn from Bills silence if he has had prior consultation with a solicitor/legal advisor.

Thanks

Well yes and no. The Act says afforded reasonable chance to consult with a solicitor. Say solicitor did not turn up for 20 hours and bill was questioned after 12 hours would that have been reasonable, or say bill was offered the opportunity to speak with solicitor over phone but he decided to wait would that have been reasonable.

Finnbar01

The constitution upholds the right to remain silent.

The whole questioning process is inherently biased agianst those who are being questioned.

Best thing to do is keep your mouth shut, at least until you speak with a solicitor.

Hogzy

ResearchWill wrote: »

Well yes and no. The Act says afforded reasonable chance to consult with a solicitor. Say solicitor did not turn up for 20 hours and bill was questioned after 12 hours would that have been reasonable, or say bill was offered the opportunity to speak with solicitor over phone but he decided to wait would that have been reasonable.

Are you 100% sure? I thought that it was a prerequisite that an accused must have actually consulted with a solicitor in some way, shape or form, before his silence can be used against him in Court.
I know for a fact that the right to silence can only be limited if their are proper procedural safe guards adhered to. These safeguards being: consultation with legal advisors.

Therefore if Bill hadnt consulted with a solicitor, yet the gardai made every attempt to find one, but one didnt turn up. Then surely the procedural safeguards have not been adhered to. (Obviously through no fault of the Gardai.)

MagicSean

Hogzy wrote: »

Are you 100% sure? I thought that it was a prerequisite that an accused must have actually consulted with a solicitor in some way, shape or form, before his silence can be used against him in Court.
I know for a fact that the right to silence can only be limited if their are proper procedural safe guards adhered to. These safeguards being: consultation with legal advisors.

Therefore if Bill hadnt consulted with a solicitor, yet the gardai made every attempt to find one, but one didnt turn up. Then surely the procedural safeguards have not been adhered to. (Obviously through no fault of the Gardai.)

If a named solicitor of his choosing wouldn't arrive until after the period of detention had expired then that would not be a reasonable delay. But at the same time you can't force a different solicitor on someone if they don't want one. If the situation was as you say then all a person would have to do to avoid inferences was ask for a solicitor who was on holiday and couldn't attend.

ResearchWill

Hogzy wrote: »

Are you 100% sure? I thought that it was a prerequisite that an accused must have actually consulted with a solicitor in some way, shape or form, before his silence can be used against him in Court.
I know for a fact that the right to silence can only be limited if their are proper procedural safe guards adhered to. These safeguards being: consultation with legal advisors.

Therefore if Bill hadnt consulted with a solicitor, yet the gardai made every attempt to find one, but one didnt turn up. Then surely the procedural safeguards have not been adhered to. (Obviously through no fault of the Gardai.)

All you have to do us read the Act the safe guard is that the accused was "afforded a reasonable opportunity" the question is what is a reasonable opportunity, if AGS contact a solicitor who refuses to attend is that reasonable opportunity. The Act does not say the accused spoke to a solicitor only that he was "afforded a reasonable opportunity". I do not have any case law on this if you can find any please link to it.



(3) Subsection (1) shall not have effect unless—

(a) 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 his or her presence at a particular place might be, and

(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

krd

Hogzy wrote: »

Are you 100% sure? I thought that it was a prerequisite that an accused must have actually consulted with a solicitor in some way, shape or form, before his silence can be used against him in Court.

I asked an English solicitor about this recently. Ideally, if you're not really aware of what's going on - you should keep your mouth shut. Look what happened to Foxy Amanda Knox.

Your silence can used in court to imply something (like your guilt). If the Garda in court says "when the defendant was asked such and such, the remained silent" but if when you're asked a question, instead of silence you reply to the question with "I'm not really sure what's happening, and I would prefer to speak to my solicitor before I can answer your question". That doesn't sound as bad in court - as a menacing silence.

ResearchWill

krd wrote: »

I asked an English solicitor about this recently. Ideally, if you're not really aware of what's going on - you should keep your mouth shut. Look what happened to Foxy Amanda Knox.

Your silence can used in court to imply something (like your guilt). If the Garda in court says "when the defendant was asked such and such, the remained silent" but if when you're asked a question, instead of silence you reply to the question with "I'm not really sure what's happening, and I would prefer to speak to my solicitor before I can answer your question". That doesn't sound as bad in court - as a menacing silence.

In Ireland unless part 4 of the Criminal justice act is invoked, any interview in which the accused remains silent can not be read to the judge or jury. So saying no comment or on advice I am saying noting is not given to the court. Unless in very few situations as outlined, in any case there is a further safeguard in part 4 in that such silence can not be the only evidence.

MagicSean

krd wrote: »

I asked an English solicitor about this recently. Ideally, if you're not really aware of what's going on - you should keep your mouth shut. Look what happened to Foxy Amanda Knox.

Your silence can used in court to imply something (like your guilt). If the Garda in court says "when the defendant was asked such and such, the remained silent" but if when you're asked a question, instead of silence you reply to the question with "I'm not really sure what's happening, and I would prefer to speak to my solicitor before I can answer your question". That doesn't sound as bad in court - as a menacing silence.

I don't get your point about Knox. She made tried to place the blame on someone else with defamatory statements. She didn't just get confused.

CrackisWhack

So It was Bill was it? Bill from Dublin?:mad:

krd

MagicSean wrote: »

I don't get your point about Knox. She made tried to place the blame on someone else with defamatory statements. She didn't just get confused.

The brow beat her into making a false confession. Slapping her across the head and shouting at her. They had a confused and frightened young woman. The narrative about the bar man coming to the apartment was their suggestion. The police believed the bar owner was involved, because Knox had sent him a text saying see your later - which actually meant see you later at work, not see you later at the rape sex murder party.

The defamation case was completely bogus. And she may have it over turned.

The Italian police made an absolute balls of their investigation. It was ludicrous from the beginning.

The Guildford four all confessed.

krd

ResearchWill wrote: »

In Ireland unless part 4 of the Criminal justice act is invoked, any interview in which the accused remains silent can not be read to the judge or jury. So saying no comment or on advice I am saying noting is not given to the court. Unless in very few situations as outlined, in any case there is a further safeguard in part 4 in that such silence can not be the only evidence.

Just an ordinary person, with no real knowledge of the law may not know that.

If I'm arrest for anything - I intend to say as little as possible.

Here's a reason why

http://video.google.com/videoplay?docid=6014022229458915912

This is the second part of lecture.

This is the first part

https://www.youtube.com/watch?v=jhbJd2USUDI

AntoinBreathnac

We're not really talking about someone called 'Bill' are we? - why not confess?

theAwakening

...not specifically related to inferences, but in relation to garda questioning, i'm familiar with rules governing the admissibility of an accused's admissions/confession, but am curious as to whether there exists in irish case law an expressed rule prohibiting/allowing Gardai to intentionally mislead a suspect in order to obtain a confession.

for example; telling a suspect that his fingerprint was found on a weapon, or that a witness saw him leaving the crime scene.

if this 'tricks' the suspect into admitting to the crime, as he now believes gardai have evidence against him anyway, although the confession was not as result of an inducement or oppressive conditions and was voluntary and otherwise lawful.....would there be grounds to have it excluded at trial...?

Hippo

theAwakening wrote: »

...not specifically related to inferences, but in relation to garda questioning, i'm familiar with rules governing the admissibility of an accused's admissions/confession, but am curious as to whether there exists in irish case law an expressed rule prohibiting/allowing Gardai to intentionally mislead a suspect in order to obtain a confession.

for example; telling a suspect that his fingerprint was found on a weapon, or that a witness saw him leaving the crime scene.

if this 'tricks' the suspect into admitting to the crime, as he now believes gardai have evidence against him anyway, although the confession was not as result of an inducement or oppressive conditions and was voluntary and otherwise lawful.....would there be grounds to have it excluded at trial...?

Such a 'confession would be inadmissable': AG v Cleary 1938; People (AG) v Flynn (1963)

castie

Hippo wrote: »

Such a 'confession would be inadmissable': AG v Cleary 1938; People (AG) v Flynn (1963)

What about this for a scenario.

Someone is detained at work for suspected stealing.
The owners tell them they have tapes and other sorts of proof.
Act threateningly and so on.
Eventually the person confesses.
They then call the cops and a Garda arrives and the person tells them the same as they just told the owners.

Is this considered a valid confession and can be used in court? Or can it later be claimed to have been coerced but not when the Garda was present?

ResearchWill

Hippo wrote: »

Such a 'confession would be inadmissable': AG v Cleary 1938; People (AG) v Flynn (1963)

I thought Flynn was about threats of violence against the accused not lies told by AGS.

The only AG v Cleary case is from 1934, in that again the member did not lie as such but threatened to bring her to the doctor to have her examined (I assume to prove she had recently given birth) them Ms. Cleary gave statement but again it was given after inducements or threats not a lie.

Avatargh

Victor wrote: »

Silence can only be used against an accused in a limited number of circumstances, e.g. special offences and alibis.

Your emphasis on "special" offences is a little misleading and is probably liable to downplay the importance of s.19A.

krd

ResearchWill wrote: »

I thought Flynn was about threats of violence against the accused not lies told by AGS.

Does anyone have an unambiguous answer?

What guide lines do the Garda have?

George Bruch (the policeman from Virgina beach - in the video I posted) he says police can lie - at least American police. He also outlines many of the techniques he's used in questioning. Quite a bit of it is trickery.

My particular fear of questioning, is not that I am a criminal. It's that I could find myself in a situation where the Garda are convinced I'm guilty of something, and all they need me to say in questioning is X, Y, and Z, and X,Y, and Z could seem very innocuous - but it could be enough for me to be locked up for a long stretch, awaiting trial for a crime I did not commit. If all they need me to say is I was in a certain place, within a rough time frame, to lock me up - I certainly do not want to give out that information.

I'm not saying the Garda are thick, but sometimes they can be convinced of someone's involvement in something, that can be completely wrong. They may have a loopy informant who they give more credibility too than they should.

It's like the case of Amanda Knox. The Italian police dreamt up a ludicrous story of a sex murder party. Where there was no evidence to suggest this had happened. They become convinced of their own extraordinary fantasy. Where a more plausible scenario would have been a rape and murder carried out by one person. They have Rudy Guede. It's far more plausible that Rudy Guede carried out the murder by himself. But Italian police, in a wild and fevered flight of their imagination, lead themselves down the garden path.

Had Amanda Knox remained silent in questioning. They would have had absolutely nothing on her. Her first court case was laughable. DNA evidence? From her own flat......Which would have been covered in her DNA had she not been involved in a murder sex party.

The whole case absolutely absurd. The police involved should have been sent to jail for their carry on. Amanda Knox spent four years in jail - could have been there for the rest of her life.

Rudy Guede's conviction may even be unsound.

ResearchWill

My understanding but I am open to correction is that AGS can tell fibs, ie "what would you say if I told you someone saw you at such and such a place!" now the accused has a right to silence except in very limited situations, so the accused can say nothing. Remember it is not AGS who declare a persons guilt that is the job of a judge or jury with the benefit of all the evidence.

In those situations AGS must explain in simple terms what the law is, and give reasonable access to solicitor, also any silence can only be used if other evidence exists, in other words if the only possible evidence is that the person stayed silent then it can't be used.

The reason solicitors advice silence in most cases, is that no matter what is said by AGS or the accused as long as the accused stays silent or refuses to answer questions by saying I will not on advice answer that, then such transcript of that interview will never be put before the court.

The cases mentioned earlier give good examples of when a statement would be excluded.

pirelli

MagicSean wrote: »

I don't get your point about Knox. She made tried to place the blame on someone else with defamatory statements. She didn't just get confused.

The police had found a Negro pubic hair at the crime scene and kept this secret but were suspicious of Knox and used her innocent text message to her boss to contrive a ridiculous accusation because her boss was black. Whether she agreed to anything during this interrogation in unknown as it was not recorded or witnessed. The fact is there was serious prosecution misconduct and this biased account from the police is highly unreliable.

We do know for certain that she wrote a statement retracting anything that might have been inferred from her role in that interrogation which included their attempt to implicate her boss . So her actions appear to be good rather than deceitful or bad.

Hippo

ResearchWill wrote: »

I thought Flynn was about threats of violence against the accused not lies told by AGS.

The only AG v Cleary case is from 1934, in that again the member did not lie as such but threatened to bring her to the doctor to have her examined (I assume to prove she had recently given birth) them Ms. Cleary gave statement but again it was given after inducements or threats not a lie.

Strange, the reference I have for Cleary is 1934 in the I.L.T.R, but I'm sure you're right.... A confession has to be voluntary, i.e., given of free will to be admissible and I doubt that one given following a lie told with the intention of extracting a confession would stand up. The criteria for exclusion are now fairly broad, c.f. the list in DPP v Shaw(1982!), and I'd say that a scenario involving such obvious mala fides on the part of the Guards would probably fall foul of this broad interpretation.

krd

I think the Garda are allowed lie in interviews.

There was a case, and you can look this up, in Clonmel a few years ago.

A guy was shot.

The Garda arrested the guy they believed to be responsible. In questioning, the gaurds said something along the lines of, "we know you did it, we have witnesses at the scene who saw you." to which the suspect replied "That's bull****..I was wearing a balaclava and gloves". Game, set, and match.


Could someone advise me on the correct use of Garda, Gardai, Guards?

theAwakening

police trickery during interviewing of a suspect appears to be a grey area in ireland. is there really a significant difference by gardai phrasing a leading question to a suspect as: (A) "your fingerprints are at the crime scene", instead of, (B) "i put to you that your fingerprints are at the crime scene?"

the latter is always put to a suspect anyway where potentially relevant. for a confession made in response to (A) to be ruled inadmissible as there is no fingerprint evidence adduced by the prosecution at trial would seem (to me) inappropriate. allegations are always be put to a suspect during interviewing in a leading manner anyway. such a confession in itself is not coerced, but granted there will always be the danger of an innocent person unknowingly incriminating himself in response to such questions (eg. putting himself at or near the crime scene) or giving inconsistent responses due to nerves etc. at the same time there is no reason for police questioning to be a genteel encounter either.

if gardai lie during questioning about the existence of evidence against a suspect, such as a witness coming forward, this 'evidence' is not going to be adduced at trial, so is the accused prejudiced? should the particular confession which came on foot of it be assessed on its particular merits by the judge/jury, such as the intricate details given by the suspect, demeanour etc.?

there is an element of mala fides here, but the same can be said in a scenario where an undercover police officer purchases drugs from a street dealer in order to secure a prosecution against them. here of course the accused would be committing the offence in front of your eyes, but there is trickery from the outset on the part of the police, which has stood the test of time worldwide in superior courts.

although having typed the above i can very vaguely recall a case law referred to in caroline fennell's 2009 edition, which essentially makes a confession made on foot of lies inadmissible. !!

Finnbar01

If you are brought in for questioning do you have the right to:

A. Speak with a solicitor before questioning.
B. Have you solicitor sit in with you during questioning
C. If B is not correct, can you ask to speak with your solicitor anytime during the interrogation.

ResearchWill

Finnbar01 wrote: »

If you are brought in for questioning do you have the right to:

A. Speak with a solicitor before questioning.
B. Have you solicitor sit in with you during questioning
C. If B is not correct, can you ask to speak with your solicitor anytime during the interrogation.

A. Yes
B. No
C. Yes

Finnbar01

ResearchWill wrote: »

A. Yes
B. No
C. Yes

Thanks RW. If you can ask to speak to your solicitor at anytime during the interview, surely that would be a nightmare for the Gardaí invovled?

ResearchWill

Finnbar01 wrote: »

Thanks RW. If you can ask to speak to your solicitor at anytime during the interview, surely that would be a nightmare for the Gardaí invovled?

Yup but from what I have seen noone has asked to speak to solicitor during interview there are two types of people in interviews the ones who could get a gold for talking and the ones who say nothing.

Procrastastudy

I know it's just the norm here but why is the solicitor excluded from the interview?

Is it normal for the Gardai to tape or video the interview or is it just written down?