privilege against self-incrimination Flashcards
(16 cards)
Introduction
- A witness to whom the privilege attaches can refuse to answer certain questions or refuse to produce certain documents.
Privilege against self-incrimination (Right to silence)
- The right not to be compelled to incriminate yourself, as encapsulated in the principle – nemo tenetur se ipsum accusare.
what are the six immunities
- R v Director of the Serious Fraud Office, ex p. Smith – six immunities that were viewed as encompassed within the right to silence:
1. A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies;
2. A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them;
3. A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind (right to silence during interview)
4. Immunity possessed by accused persons undergoing a trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock;
5. Immunity, possessed by all persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by the police officers or persons in a similar position of authority;
6. Immunity (at least in some circumstances) possessed by the accused person undergoing a trial, from having adverse comment made on any failure a) to answer questions before the trial, or b) to give evidence at the trial. - There are three broad subcategories of the privilege against SI:
1) The right to silence;
2) The right not to give evidence;
3) Privilege against self-incrimination.
Rationale
- McGrath notes that while the right against self-incrimination has historical roots, judges and scholars have offered various justifications for its ongoing relevance. The most compelling is its close link to the presumption of innocence –
- Recognized in the ECtHR – Saunders v United Kingdom:
o The right against self-incrimination assumes that the prosecution must prove its case without using evidence obtained through coercion or oppression. It is closely tied to the presumption of innocence under Article 6(2) of the Convention.
o Rejected other rationales, such as the idea that a suspect should not be subjected to the ‘cruel trilemma of self-accusation, perjury or contempt’: - I pass over—since they are, in my view, flawed—rationales such as that these immunities shield suspects from ‘cruel choices’ or that it is unethical to force someone to aid in their own downfall. These arguments assume the suspect is guilty, as an innocent person would face no such dilemma or risk by answering truthfully. Innocent suspects are not treated cruelly or unethically, and guilty ones have no grounds to complain if society denies them the chance to evade conviction by staying silent or concealing evidence.
- The right to silence - seminal case - HC
- Heany v Ireland – in discussing the right to silence, O’Flaherty J addressed the constitutionality of s.52 of the Offences Against the State Act 1939, which allowed Gardaí to demand a full account of a person’s movements, non-compliance being an offence. Heaney argued this breached his constitutional right to silence.
o In the HC, Costello J held that common law immunities, including the right to silence, are protected under Article 38.1, which guarantees trial in due course of law. He found this right extended beyond trial to suspects in custody, noting its recognition in comparable legal systems and by the ECtHR in Funke v. France. He stated: - “The fairness of a trial can be undermined by what occurs beforehand, for example, evidence obtained improperly before trial may invalidate the trial itself. Therefore, if the suspect’s right to silence is a fundamental part of our criminal justice system, it is protected by Article 38.1.”
o However, he stated that the right was not absolute.
o The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. This means chosen must pass a proportionality test. They must:
1. Be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
2. Impair the right as little as possible;
3. Be such that their effects on rights are proportional to the objective.
o HC dismissed the applicant’s claim – it was proportional interference with Art. 38.
seminal case - SC
o SC – O’Flaherty J., delivering the judgment, left open whether Article 38 applied, instead grounding the right to silence in Article 40’s guarantee of freedom of expression: “The right to freedom of expression necessarily implies the right to remain silent.” He noted, however, that this right—like freedom of expression itself—is not absolute, being subject to public order and morality.
o O’Flaherty J. emphasized a key distinction: the absolute right to silence VS the right to remain silent to avoid self-incrimination. He noted that if someone is entirely innocent, it would take a strong commitment to constitutional rights to refuse giving an account when legally required. The Court therefore viewed the issue as an encroachment on the right not to provide self-incriminating evidence, rather than a breach of an absolute right to silence.
o The Court examined whether the Gardaí’s power under the section was proportionate to the legislation’s aim. It held that while the State can infringe on the right to silence to uphold public order, this must affect citizens’ rights as little as possible. Innocent individuals may resist on principle, but their right must yield to the State’s need for protection. Even more so, those with relevant information about a crime have a weaker claim to remain silent.
- The accused then went to the ECtHR – held that s. 53 violated Article 6 of the ECHR.
o The Court acknowledged that the right to silence and against self-incrimination under Article 6.1 are not absolute rights. However, it emphasized that international standards central to fair procedure under Article 6 are at stake.
o Ruled – the compulsion imposed by Section 52 of the 1939 Act destroyed the essence of the right to remain silent and not self-incriminate.
o The Court found that security and public order concerns could not justify infringing these rights. Additionally, the Court noted the close link between the right against self-incrimination and the presumption of innocence under Article 6.2, concluding that both rights had been violated.
Adverse inference from silence
- People (DPP) v Finnerty – The SC considered the impact of cross-examination regarding an accused’s refusal to answer questions or provide a version of events during detention.
o Keane J. – an accused’s right not to testify should not result in any adverse inference, and in a jury trial, the jury must be explicitly informed of this.
o The court ruled that if a defendant was detained under Section 4 of the Criminal Justice Act 1984, and no probative value emerged from such detention, the court should only be informed of the detention and the lack of probative value. No cross-examination about the defendant’s refusal to answer questions should occur, and the trial judge should not mention the refusal during jury instructions. - People (DPP) v Lavery – judge should point out to the jury that an accused person is not required to give evidence, and they are not entitled to draw any adverse inferences from his failure to testify.
- People (DPP) v Foley – the accused, convicted of possessing firearms and ammunition with the reasonable inference that they were not possessed for lawful purposes, challenged the conviction. The appellant argued that the SCC had not properly recognized the onus or the required standard of proof beyond a reasonable doubt, nor had it given adequate consideration to the accused’s right to silence.
o Appeal dismissed – the “right to silence” means that an accused is entitled to rely on the prosecution to prove its case without having to provide an explanation or give evidence. However, if evidence pointing to the accused’s guilt is presented, they must attempt to rebut the prosecution’s case with evidence, or face the consequences.
Exceptions to rule that adverse inferences cannot be drawn from silence
- Heany v Ireland – safe in accordance with the law
- People (DPP) v Finnerty – SC reiterated that the right to silence is a constitutional right. However, it held that any limitation on this right, such as drawing inferences from an accused’s silence, must be explicitly legislated for and proportionate to the objectives of the legislation.
- Several Acts in Irish law limit the right to silence by allowing a judge or jury to draw adverse inferences from an accused person’s failure to mention facts they later rely on in their defense, either during an interview or prior to it. In practical terms, these provisions allow a court or jury to consider a person’s silence when certain matters are raised during questioning.
Examples - Criminal Justice Act 1984 s. 18 and 19
- Section 19A of the Criminal Justice Act 1984, as inserted by section 30 of the Criminal Justice Act 2007, provides that inferences can only be invoked if:
i. It relates to an arrestable offence;
ii. The accused person is told in clear terms that inferences are being invoked and the repercussions thereof;
iii. It relates to facts within the accused person’s knowledge;
iv. Inferences invoked in interview are electronically recorded; and
v. The accused person is allowed reasonable access to legal advice. - Any inference drawn can only be used to corroborate existing evidence and cannot form the sole or main basis for conviction.
- Horan, Corporate Crime
S. 19A is a particularly onerous provision, especially in complex financial or fraud offences, where asserting facts for a defense can be challenging without legal advice. It requires an accused to have a “reasonable opportunity” to consult a solicitor before failing to mention facts. This reflects the ECtHR decision in Murray v UK, which emphasized the importance of legal access during initial questioning. However, it could be argued that the section does not go far enough, given the seriousness of the provision.
o The more detailed the question is – the bigger adverse inference may be.
- Section 18 addresses an accused’s failure to explain an object, substance, or mark when arrested without a warrant by a Garda. If the Garda reasonably believes that the object, substance, or mark may be linked to the accused’s participation in the offence they are arrested for, the section applies.
- Section 19 also covers the failure of an accused to explain their presence at a specific location around the time an alleged offence occurred. If a Garda reasonably believes that the accused’s presence at that place and time may be linked to their involvement in the offence, the section applies.
- Offences Against the State (Amendment) Act 1998 s. 2
- Under Section 21 of the 1939 Act, if in proceedings for membership of an unlawful organisation, evidence is presented that the accused failed to answer material questions during Garda questioning before being charged, the court (or jury) may draw inferences from this failure when determining whether there is a case to answer or in deciding the accused’s guilt. However, any conviction cannot be based solely on an inference drawn from the failure to answer questions.
- Criminal Justice (Drug Trafficking) Act 1996, s. 7.
- In proceedings for a drug trafficking offence, if evidence shows that the accused failed to mention any fact they rely on in their defence, which they could reasonably have been expected to mention during questioning, charging, or informing, the court (or jury, under the judge’s guidance) may draw inferences from this failure when deciding if there is a case to answer or in determining guilt. However, a conviction cannot be based solely on an inference drawn from the failure to mention such facts.
- Right not to give evidence at trial
- Heany v Ireland – An accused’s immunity stems from common law objections to abuses in judicial interrogations. Consequently, an accused cannot be forced to give evidence on their own behalf, has the right to remain silent during trial, and cannot be questioned by either the prosecution or the judge.
- This right was given statutory recognition in the Criminal Justice (Evidence) Act 1924.
o Section 1(a) of that Act made an accused a competent but not compellable witness for the defence specifically providing that “a person so charged shall not be called as a witness in pursuance of this Act except upon his own application”.
o Section 1(b) states that “the failure of any person charged with an offence, to give evidence shall not be made the subject of any comment by the prosecution”.
Privilege against self-incrimination - civil case - HC
- Re National Irish Bank – The case involved Part II of the CA 1990, which empowered inspectors to compel company officers and agents to answer questions and produce documents during an investigation. The inspectors were appointed to examine improper financial practices between 1988 and 1998. Section 10 imposed a duty on those with relevant information to comply, while Section 18 allowed such compelled answers to be used in evidence against the person. The inspectors sought guidance from the HC on whether individuals could refuse to answer on self-incrimination grounds and whether the process complied with natural and constitutional justice.
o HC upheld the constitutionality of the section –> appealed to the SC –> dismissed
o HC – ‘It is, a legitimate aim of the State, in the public interest, to expose fraud and dishonesty. Where the only effective means of doing so is through an investigative process that excludes the right to silence (as here), it can be said that the limits imposed by s. 10 are no more than necessary to meet the State’s constitutional duties—namely, to uphold equality before the law and to protect citizens’ property rights. The restriction on silence under s. 10 is therefore proportionate to those objectives, s. 10 is not invalid having regard to the provisions of the Constitution.’
civil case - SC
o SC, Barrington J. – agreed that the powers granted to inspectors under s. 10 were not excessive in light of the public interest. The Court held that what Article 38 prohibits is compelling a confession and then convicting someone based on it. Since any such confession would only be admissible at trial if deemed voluntary by the trial judge, the Court upheld the constitutionality of the provisions.
o The Court concluded that the powers granted to inspectors under s.10 of the Companies Act 1990 were proportionate and aligned with the public interest, stating: ‘It appears to me that the powers given to the inspectors under s.10 of the Companies Act, 1990… are no greater than the public interest requires. Their meaning is clear and they pass the proportionality test.’
o In his judgment, Barrington J. also examined the constitutional basis of the right to silence, considering whether it could be derived from Articles 40.6.1 (freedom of expression), 40.3 (protection of personal rights), and/or Article 38.1 (right to trial in due course of law).
o In this case, Article 40.3 simply reinforces the other two constitutional guarantees: the right to silence generally, and the right to a fair trial.
grocery store case
- Dunnes Stores Ireland Company v Ryan – Kearns J., in considering the constitutionality of s.19 of the Companies Act 1990, endorsed the comments of Lord Mustill in R. v. Director of the Serious Fraud Office, ex p. Smith, stating that the right to silence does not denote any single right but refers to a disparate group of immunities differing in nature, origin, incidence, and importance.
o He agreed with the observation that it is necessary ‘to keep distinct the motives which have caused them to become embodied in English law; otherwise objections to the curtailment of one immunity may draw a spurious reinforcement from association with other, and different, immunities commonly grouped under the title of a ‘right to silence’.’
o He concluded: ‘There is no suggestion of a ‘trial’ or ‘suspect’ as in Heaney v. Ireland… The case is at the lower end of the spectrum identified by Lord Mustill.”
o He found that the provision passed the proportionality test: ‘The compulsion to produce books and answer limited questions under s.19 does not infringe Article 40 of the Constitution, given the public interest in good corporate governance.’
o His comments on Barrington J.’s judgment in Re National Irish Bank highlight: ‘This approach essentially ‘parks’ issues of later use or admissibility under s.10, leaving them to be dealt with case by case. This means the use of incriminatory material is subject to a subjective test rather than an objective standard, displacing the common law self-incrimination test.’
o In comparing sections, he distinguished Section 19(6), finding it failed the minimum invasions test from Heaney, as refusal to answer automatically resulted in an offence. He echoed the European Court’s language in Heaney v. Ireland: ‘Can there be any ‘voluntariness’ in answering questions here? In my view, there is not. The choice between a conviction on refusal and self-incrimination in later prosecution leaves no real option.’
