Right to remain silent

Mr Burns

If the cops want you to a make a statement in relation to an alleged crime, you have the right to tell them nothing? Yes or no?

How do you tell a cop in a polite way that you wish to tell them SFA and to f off?

Is there some section of the constitution you need to invoke?

Drag00n79

Article 38 Section 1, I think.

Our man in Havana

Article 38 deals with the trial of offences, there is nothing in there that gives a right to silence.

Drag00n79

Was there not some amendment about ten years ago?

seamus

You do have the right to say nothing, of course. You could of course end up incriminating yourself by saying nothing. Ultimately, unless the Gardai have a reason to charge you with the crime, then saying "I don't know anything" can't land you in trouble. If subsequently however, the Gardai have a reason to believe you know something (indentified as being at/near the scene of the crime, or having talked to the perpetrator), then you can land yourself in hot water.

Ultimately, you should tell the Gardai if you know anything, as to act otherwise is an offence.

Our man in Havana

If the Gardai have little or no evidence, then speaking could incriminate you, which is what they want you to do. Why help them to hang you? It's not up to you to do their work.

I don't think that any adverse inference can be drawn from invoking the right to remain silent. The only exception is S30 of the offences against the state act 1939.

amazingemmet

Just don't answer any questions til your solicitor arrives, and don't accept the one they appoint for you.

seamus

Bond-007 wrote:

If the Gardai have little or no evidence, then speaking could incriminate you, which is what they want you to do. Why help them to hang you? It's not up to you to do their work.

I don't think that any adverse inference can be drawn from invoking the right to remain silent. The only exception is S30 of the offences against the state act 1939.

The "right to remain silent" only applies when you are being charged with something. However, if you're not being charged, you can be charged with withholding evidence or obstructing an investigation, if you fail to provide information which you know to be relevant to the investigation.

Mr Burns

Mr Burns wrote:

If the cops want you to a make a statement in relation to an alleged crime, you have the right to tell them nothing? Yes or no?

Absolutely yes.

How do you tell a cop in a polite way that you wish to tell them SFA and to f off?

You tell them you couldn't be sure this way or that and you don't want it on your conscience if you are not sure and stick to your guns on that.It would also be an idea to point out that that is what you would say if you were on the stand in the court, because in all fairness you are not too sure.

Is there some section of the constitution you need to invoke?

Nope-as said already, the right to remain silent only comes into play if you yourself are being charged with something,in which case at worst you are entitled to free legal aid so you can ask your solicitor what to do.

Victor

Whatever happened to being the good citizen?

Refusing to assist in the conviction of a criminal isn't exactly ideal, is it?

Our man in Havana

What if in this hypotechial situation.

The person being questioned is guilty of a crime, but the gardai have no evidence. ie the gardai are on a fishing trip. Surely one has a right not to self incriminate by refusing to answer questions?

WhiteWashMan

if its a hypothetical situation, then i think you would agree that it would be silly not to help the guards with any enquiries.

otherwise, it would appear you have something to hide.

why would you have an attitude towards the police by telling them to f off?
seems like stupid teenage petulence.

oh, and this is not a personal issue, moved to humanities before all the ideal citizens arrive....

seamus

Bond-007 wrote:

What if in this hypotechial situation.

The person being questioned is guilty of a crime, but the gardai have no evidence. ie the gardai are on a fishing trip. Surely one has a right not to self incriminate by refusing to answer questions?

I always thought that was a curious right. "If you're guilty of a crime, but we have no evidence, then you are not required to reveal it to us".

I'm not sure if it's a right that actually exists in this country. It may be possible to charge an offender with obstruction of justice if he refuses to co-operate with Gardai.

28064212

seamus wrote:

I always thought that was a curious right. "If you're guilty of a crime, but we have no evidence, then you are not required to reveal it to us".

I'm not sure if it's a right that actually exists in this country. It may be possible to charge an offender with obstruction of justice if he refuses to co-operate with Gardai.

From reading this (and I could be wrong), I thought the OP meant in the situation that you were a witness, as opposed to an offender. I think (again, could be wrong) a witness could be charged with obstruction of justice. Or they could force you to appear in court with a subpoena (I assume there is such a thing in Ireland, or an equivalent). I'm looking at this from the point of view that maybe you saw a friend or someone you know committing a crime who you don't want to implicate

county

seamus wrote:

The "right to remain silent" only applies when you are being charged with something. However, if you're not being charged, you can be charged with withholding evidence or obstructing an investigation, if you fail to provide information which you know to be relevant to the investigation.

when you get arrested you are given your rights"the right to remain silent"so from that point you do not have to say a thing

MG

.

seamus

28064212 wrote:

From reading this (and I could be wrong), I thought the OP meant in the situation that you were a witness, as opposed to an offender. I think (again, could be wrong) a witness could be charged with obstruction of justice. Or they could force you to appear in court with a subpoena (I assume there is such a thing in Ireland, or an equivalent). I'm looking at this from the point of view that maybe you saw a friend or someone you know committing a crime who you don't want to implicate

I was actually responding to Bond's comment (though that's not to say that the OP may not implicate himself in whatever crime has occured, should he give the Gardai information).

when you get arrested you are given your rights"the right to remain silent"so from that point you do not have to say a thing

The kicker with the "right to remain silent" though is that you cannot withhold anything that may help your defence. If you bring up something in court that you didn't mention when questioned, it may not be believed or admissable as evidence. And since it's tough to say exactly what may help your defence, you put yourself in a sticky situation by remaining schtum.

Hobart

seamus wrote:

The kicker with the "right to remain silent" though is that you cannot withhold anything that may help your defence. If you bring up something in court that you didn't mention when questioned, it may not be believed or admissable as evidence. And since it's tough to say exactly what may help your defence, you put yourself in a sticky situation by remaining schtum.

I did not think that that ammendment was introduced in Ireland. I know the police in the UK have introduced this amendment. However, I'm almost sure that the Guards, inform you, as a point of law, to your right to remain silent, your right to legal representation, and the offer of representation if you cannot contact/afford your own. The right to remain silent, if invoked cannot be used against you in an Irish court of law AFAIK.

This set of rights and it's requirment to be read to you in the event of you being arrested is known as the Miranda rule or Miranda warning.

Zillah

My understanding is that you have the right to remain silent, but only on the grounds that you may incriminate yourself. Its only in regards to yourself. If you refuse to answer a question about a crime a friend may have committed then Im fairly sure they can charge you with obstruction of justice, or impeding an investigation or some such.


(Disclaimer: I maybe completely wrong, but I dont think so.)

landser

amazingemmet wrote:

Just don't answer any questions til your solicitor arrives, and don't accept the one they appoint for you.

... why would you turn away the solicitor??

while you have a right to remain silent if accused of a crime (the gardai can't force you to talk), the question is can a court take a negative inference from the fact that you made no statement i.e. he didn't try to prove his innocence, he must be guilty. AFAIK, a court can take no such inference and a judge must direct the jury accordingly (although, subconsciously, they probably will hold it against the accused) They did away with this in the UK a few years ago and now the court has a discretion as to whether or not the refusal to make a statement can be taken into account when deciding on the perps culpability

Hobart

Zillah wrote:

My understanding is that you have the right to remain silent, but only on the grounds that you may incriminate yourself. Its only in regards to yourself. If you refuse to answer a question about a crime a friend may have committed then Im fairly sure they can charge you with obstruction of justice, or impeding an investigation or some such.


(Disclaimer: I maybe completely wrong, but I dont think so.)

When you are arrested, you are, obviously charged with a crime. The right to remain silent will not help you incriminate or unincriminate you from that charge. Upon arresting you the Guard will inform you of the following:

"Joe Bloggs, I am arresting you in relation too "insert crime here" on such and such a date." He should then quote the relevent section with which this crime contravenes. He then should inform you of your reight to remain silent. Your right to legal representation etc....

You can however be detained by the Guards, in relation to an investigation. You are not charged with any crime, and you should be informed of this, howvere the statute provides for varying times in which the Guards can detain you without charge. You will not be told that you have a right to remain silent, however you do not have to answer any questions, except to confirm your name, address, dob. Other than that you can simply reply "No comment"

In the USA they have a saying that you can plead the 5th. This is a legal right a witness or defendant has, to refuse to answer a question when put to him on the basis that his/her answer may incriminate him/her. We do not have an amendment here (AFAIK). However a witness/defendant may refuse to answer a question, when put to him/her, in a court of law on the basis of advice giving to them by their legal rep. This advice may or may not be questioned by the Jurors, and an explanation sought.

mycroft

Zillah wrote:

My understanding is that you have the right to remain silent, but only on the grounds that you may incriminate yourself. Its only in regards to yourself. If you refuse to answer a question about a crime a friend may have committed then Im fairly sure they can charge you with obstruction of justice, or impeding an investigation or some such.


(Disclaimer: I maybe completely wrong, but I dont think so.)

It all really depends.

1. Is the OP actually at the scene and the Garda is demanding basic info from him Name/Address etc.

2. Is the OP an accidental witness to a crime, IE leaving a pub sees three bouncers laying into a bloke.

3. Is the witness a material witness with a personal relationship with the accused or a defendent.


In the first case he has to give evidence.

In the second case he should give evidence, can be compelled to give evidence but probably won't because it is in essence a massive pain in the boll*cks for the Garda, for a witness who can happily say in the witness box "It was dark and I was pissed I'm not sure what I saw"

In the final case it's likely that the bloke will be done for obstruction of justice if they feel he has evidence that could dramatically effect the outcome of the case.

If you're worried about self incrimination keep stum until your solicitor arrives or until you are charged and a court appointed solicitor arrives.

Gillo

Is there a solicitor or barrister here who can give a definite answer?
No offence, but this just seems to be everyones opinions, thats why I'm not goign to post what I think is the situation myself.

mycroft

gillo wrote:

Is there a solicitor or barrister here who can give a definite answer?
No offence, but this just seems to be everyones opinions, thats why I'm not goign to post what I think is the situation myself.

I've testified as a prosecution witness in a number of cases, so I'd consider myself to be a well informed amateur.

Hobart

gillo wrote:

Is there a solicitor or barrister here who can give a definite answer?
No offence, but this just seems to be everyones opinions, thats why I'm not goign to post what I think is the situation myself.

A definitive answer to what? Do you have the right to remain silent when arrested? Yes, is the defitive answer.

Our man in Havana

Consider the situation, where no one is arrested.

Person is reported for Dangerous driving and a statement is made against the person concerned. Gardai arrive out to ask the driver questions and ask for a statement.

The person knows they did it, can he refuse to make a statement/comment to the Gardai as his responses would incriminate him?

seamus

Bond-007 wrote:

Consider the situation, where no one is arrested.

Person is reported for Dangerous driving and a statement is made against the person concerned. Gardai arrive out to ask the driver questions and ask for a statement.

The person knows they did it, can he refuse to make a statement/comment to the Gardai as his responses would incriminate him?

See this is what I find weird. Surely if he's guilty, and it's discovered that he is despite him refusing to co-operate, he should be punished more severely for attempting to cover up his crime?

Our man in Havana

It is usually the situation that the Gardais evidence is insuffient to secure a conviction without the accused's confession. In a case like that the accused's refusal to talk would cause the case to fail.

seamus

Bond-007 wrote:

It is usually the situation that the Gardais evidence is insuffient to secure a conviction without the accused's confession. In a case like that the accused's refusal to talk would cause the case to fail.

Should we not be able to charge people with that. It's reasonable to assume that if a crime has been committed and a person refuses to talk, then they are withholding something pertinent to the case.

mycroft

Bond-007 wrote:

Consider the situation, where no one is arrested.

Person is reported for Dangerous driving and a statement is made against the person concerned. Gardai arrive out to ask the driver questions and ask for a statement.

The person knows they did it, can he refuse to make a statement/comment to the Gardai as his responses would incriminate him?

Yes. But unless the person reporting the dangerous driving is for example, a Garda it's unlikely the case would see court.

Now for example, if someone was seen driving erratically and is reported by a member of the public. The Gardai call to the house, the car's engine is warm, and the accused answers the door reaking of drink. There's no evidence however that will conclusively prove your guilt unless you admit you were driving and you can't be compelled to answer any questions, other than name address etc.

seamus wrote:

See this is what I find weird. Surely if he's guilty, and it's discovered that he is despite him refusing to co-operate, he should be punished more severely for attempting to cover up his crime?

To follow this suppose our hypothetical man driving drunk had infact done a hit and run, and when the Garda arrive at the man's house he says nothing. The gardai would have more cause to arrest you,and impound your car, because of the more serious nature of the offence.

Now if he's guilty and he keeps stum right up to the first day in court whenby he at the last minute changes his intented plea from not guilty to guilty, the courts would go easier on him.

Hey no one said the system worked.

Hobart

In a way these factors do go on to determine the severity of an individuals punishment. You hear and read about a Judge taking into consideration the convicted persons remorse and or guilty plea, wether the accused co-operated with the Guards etc... So the Judge can and does take these factors into consideration.

However you cannot have a situation wherby somebody is punished for invoking one of their rights, no matter how henious a crime. The rights are there to protect the guilty and the innoncent.