Rights of the Accused

Victor

With a non-Garda / non-DPP prosecution, is the accused entitled to be read their rights before submitting a statement?

Peregrinus

Before submitting a statement to who?

Victor

The prosecuting authority.

Peregrinus

The right to silence is constitutionally guaranteed, and your constitutional rights don't vary according to who is investigating you. And of course the whole business of cautioning someone is done to ensure that he's aware of his right to silence (and the limitations upon it).

But . . .

While there is power in Criminal Justice Act 2007 s.32 for the Minister for Justice to make regulations providing for the administration of cautions, so far as I know no actual regulations have been made, so the whole thing is a matter of practice rather than of hard law. The "Judges' Rules" are generally considered an authoritative statement of the practice. They only require a caution if (a) you have been charged, or (b) you are under arrest. In practice it may be that people are cautioned by the guards at an earlier stage - i.e. as soon as the guards have them in the frame for a particular offence. But there is no general rule, even for the guards, that people must be cautioned before they give any statement. Even on the strongest view, they don't have to caution you until they have evidence that makes you a suspect. In the earliest information-gathering phase of an investigation, where they are looking for suspects, they may not caution anyone, because at that point they have no suspects. And, even when there are suspects, many people who are interviewed are not suspects; they're just witnesses. It may be that as a result of what happens in the interview (or what happens independently of the interview) they become suspects, at at that point they'll be cautioned. And, finally, note that a statement taken in breach of the Judges's Rules doesn't have to be excluded; it's quite likely to be excluded, but there's no rule of law requiring this. Much is going to depend on the circumstances, nature and extent of the breach of the Rules.

Right. The Judges' Rules, on their own terms, only apply to the guards, but since they give effect to a constitutional right I'd imagine other agencies with more limited investigation/prosection briefs still apply them in the investigations that they make. (But I don't know if there's any case that actually holds that they must do this.) As noted, the Judges' Rules don't require a caution before arrest/charge, and in any case these agencies may not have a power of arrest, so the question will really come down to (a) was this person a suspect at the time he was interviewed, and (b) if so, and if he wasn't cautioned, why not?

Victor

On the LUAS Standard Fare Statement of Explanation Form https://payments.luas.ie/onlineexplanation.aspx (PDF available on page) it says "We reserve the right to present this Form in court at a subsequent date as evidence that may be used against you."

And then invites people to select from the following options:

"Queue for ticket machine too long
Misunderstood map of zones
LEAP card failed to register when tapping on
Tram arrived before I could purchase a ticket
Forgot to get off tram at correct stop
Misunderstood ticket price / details
I didn’t have correct cash amount
Ticket lost after boarding tram
Travelled in wrong direction by mistake
Ticket machine was broken
Didn’t realise that my ticket had expired
Other, please explain in the notes section
Only travelling one / two stop(s)"

The thing is, quite a few of those options are admissions of guilt and the warning is a little weak.

Peregrinus

Excuse my ignorance, but in what circumstances is someone invited to complete this form?

Fred Swanson

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ohnonotgmail

the warning seems pretty clear to me. Not sure i would describe it as weak.

Fred Swanson

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coylemj

There is an option 'Other, please explain in the notes section' where you have the option to type an explanation in your own words, they are not forcing you to select from a limited choice.

So if you decline to respond, can that be used against you in a prosecution? You had an opportunity to explain why you had no ticket but you choose to wait several weeks until you arrived in court with a lawyer at which point you had dreamed up a story.

NUTLEY BOY

Having had a quick look at the LUAS Standard Fare Statement of Explanation Form it almost appears that they are treating this as a strict liability offence whereby they are shifting the onus on to the passenger to exculpate themselves.

On a second glance that form almost reads like a Notice to Admit Facts with the difference that the appellant is virtually compelled to answer. Presumably, if you don't answer they will decide against you and proceed accordingly.

Who actually adjudicates on the appeal ?
If it is the LUAS operators themselves there would not appear to be a problem if they find in favour of the passenger. However, if they find against the passenger is there not a whiff of nemo judex in causa sua about it if they effectively adjudicate on an issue as between themselves and another party ? Who is going to make an application to the High Court for an order for Judicial Review ? Somebody with loads of time and buckets of money. Indeed, would the LUAS operators be an entity that could be subject to judicial review ?

Is it possible to modify one of those explanation forms and return it by post on a without prejudice basis with an indication that you are also reserving your rights not to have any apparent admissions adduced against you in accordance with your overriding right not to self-incriminate. Alternatively, would it be tactically better to self incriminate and then plead that there was a denial of a caution and the associated right not to self-incriminate ?

Offhand, this look like one of those issues that needs to be tested to settle the law on this specific scenario i.e. LUAS.

Fred Swanson

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Victor

NUTLEY BOY wrote: »

Indeed, would the LUAS operators be an entity that could be subject to judicial review ?

The operator Transdev takes the prosecution as agent of the system owner Transport Infrastructure Ireland.

GM228

NUTLEY BOY wrote: »

Having had a quick look at the LUAS Standard Fare Statement of Explanation Form it almost appears that they are treating this as a strict liability offence whereby they are shifting the onus on to the passenger to exculpate themselves.

Failure to produce a ticket when requested is a strict liability offence.

NUTLEY BOY wrote: »

Who actually adjudicates on the appeal ?

Transdev.

NUTLEY BOY wrote: »

If it is the LUAS operators themselves there would not appear to be a problem if they find in favour of the passenger. However, if they find against the passenger is there not a whiff of nemo judex in causa sua about it if they effectively adjudicate on an issue as between themselves and another party ? Who is going to make an application to the High Court for an order for Judicial Review ? Somebody with loads of time and buckets of money. Indeed, would the LUAS operators be an entity that could be subject to judicial review ?

The principles of nemo judex in causa sua does not come into play, it only applies in relation to the administration of justice by the courts, tribunals* and public bodies* (*and only then if they had the power to administer justice). Remember this is not your last point of appeal, court is.

GM228

Victor wrote: »

The operator Transdev takes the prosecution as agent of the system owner Transport Infrastructure Ireland.

No they take the prosecution in their own right, not as an agent of TII.

Peregrinus

ohnonotgmail wrote: »

the warning seems pretty clear to me. Not sure i would describe it as weak.

The warning doesn't say that you don't have to complete the form at all, or point you to the alternative course of not appealing the fine but simply heading straight off to court without making any potentially incriminating admissions. (Though possibly there's another document in the process that points out that option to people; I don't know.)

Fred Swanson wrote: »

Has the wording of the form used by Transdev ever been tested in court?

An excellent question, but there's a prior one; Trasndev asserts the right to give the form in evidence but, in practice, do they?

Suppose I fill out the form and tick an apparently incriminating box. ("Queue for ticket machine too long", say.) Transdev rejects my appeal, but I decline to pay. They then prosecute me for not having a ticket. They don't need to submit the form; all that they have to prove is that I didn't have a valid ticket, which is proven by the inspector's evidence. Even if they do put the form in and I object and have it excluded, I can still be convicted on the Inspector's evidence.

But suppose that at the trial I give evidence that I did have a tagged-on leap card, but the inspector's machine failed to register it. Submitting the form in that circumstance would impeach my testimony about having tagged on. Then I could object to the admissiblity of the form on the basis of an inadequate caution and, while I'm not a criminal practitioner, I reckon it would certainly be worth having a go; what have I got to lose?

But if I was unsuccessful in objecting to the form, and was convicted, I don't see myself appealing this all the way to a court of record where a precedent as to adequacy of caution/admissibility of form might be set. The amount of the fine is not likely to justify such an appeal.

GM228

Peregrinus wrote: »

The right to silence is constitutionally guaranteed

Incidentally the High Court has today found the offence of witholding information from Gardaí under the Offences Against the State (Amendment) Act 1998 to be unconstitutional as it goes against the right to silence.

Oddly enough other challenges with similar offences have been held to be constitutional such as the requirement to answer questions under S18 or S19 of the Criminal Justice Act 1984 or S52(1) of the Offences Against the State Act 1939 - the Supreme Court holding that the right to silence is not absolute.

I would not be surprised if todays ruling by the HC is appealed by the DPP to the SC.

by8auj6csd3ioq

Incidentally the High Court has today found the offence of witholding information from Gardaí under the Offences Against the State (Amendment) Act 1998 to be unconstitutional as it goes against the right to silence.

Does this ruling today mean that the offence of withholding information under section 2  Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 could also be  unconstitutional? http://www.irishstatutebook.ie/eli/2012/act/24/section/2/enacted/en/html#sec2

GM228

Camdyn Poor Photograph wrote: »

Does this ruling today mean that the offence of withholding information under section 2  Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 could also be  unconstitutional? http://www.irishstatutebook.ie/eli/2012/act/24/section/2/enacted/en/html#sec2

All legislation is afforded a presumption of constitutionality, as such the 2012 Act will still have the benefit of that presumption as it was not the subject of todays ruling.

GM228

GM228 wrote: »

Incidentally the High Court has today found the offence of witholding information from Gardaí under the Offences Against the State (Amendment) Act 1998 to be unconstitutional as it goes against the right to silence.

Oddly enough other challenges with similar offences have been held to be constitutional such as the requirement to answer questions under S18 or S19 of the Criminal Justice Act 1984 or S52(1) of the Offences Against the State Act 1939 - the Supreme Court holding that the right to silence is not absolute.

I would not be surprised if todays ruling by the HC is appealed by the DPP to the SC.

On second thoughts, is it actually possible to appeal a declaration of unconstitutionality?

I have never heard of such.

Fred Swanson

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GM228

Fred Swanson wrote: »

As it was a High Court decision it would be appealable to the more superior courts.

Not all decisions of lower courts are appealable to a higher court, depending on the nature of the ruling sometimes it is final and often the only recourse to a higher court is by way of judicial review on a point of law.

If allowed in this case it would require a leave of court and I'm wondering if such is permitted in normal circumstances, something tells me this can not be appealed under normal circumstances, having thought about it more it may be allowed, but, only where it is shown to be of exceptional public importance meaning there is no general right of appeal.

Peregrinus

But the constitutionality of a law compelling people to give information to the guards would be a point of exceptional public importance, surely?