Right to silence in criminal cases

If you are arrested in Ireland, the Irish Constitution (or Bunreacht na hÉireann) provides:

• A protection against self-incrimination (making a statement that might now or later expose you to criminal proceedings)
• A guarantee that everyone accused of a criminal offence is innocent until proven guilty

The protection against self-incrimination and the right to silence are associated with the presumption of innocence.

When you are charged with a criminal offence, the responsibility of proving your guilt lies with the prosecution. No responsibility generally lies with you, (the accused) to prove your innocence.

There are two exceptions to this rule:

• Where a particular law requires you to prove or give evidence of something relating to the possible offence. For example, if you are charged with possession of drugs and the prosecution proves that you actually had the drugs. It is then a legal requirement for you to prove that you did not know that they were drugs. Otherwise, you may be convicted.
• Where you offer a defence of insanity or diminished responsibility (this is where you are charged with murder but suggest that you were suffering from a mental disorder but were not legally insane). It is then up to you to prove your insanity or diminished responsibility.

Self-incrimination

As the responsibility is on the prosecution to prove your guilt, it follows that you should not be forced to assist the prosecution by being forced to speak and potentially incriminate yourself.

If you are arrested and brought to a Garda station, the arresting Garda must inform you of your general right to remain silent during questioning. This is done by way of a caution which states:

“You are not obliged to say anything unless you wish to do so but anything you say may be taken down in writing and may be used in evidence”.

The constitutional right to silence will not extend to not answering police questions such as your name, address, your date of birth or nationality unless this information is self-incriminating in some way.

No absolute right to silence or privilege against self-incrimination

The right to silence and privilege against self-incrimination in Ireland is not an absolute right, which means there are exceptional situations where it does not apply.

However, in the majority of criminal offences this right applies. When you are accused of a criminal offence, you have the right to silence unless you are told by the Gardaí that the offence you are arrested for means you must give information (see ‘Offence of not answering questions’ below). The Gardaí must also tell you of the consequences if you fail to answer.

The fact that you exercised your right to silence while in custody should not be referred to at any later trial.

The Irish Constitution recognises the absolute right if you are accused of a criminal offence, to refuse to testify at a trial in court.

If you testify or give evidence

If you decide to testify or give evidence, then you give up your right to silence as this will involve you also answering questions put to you by the prosecution. You cannot refuse to answer on the basis that the answers would incriminate you.

In certain circumstances, if you choose to be silent it may affect you negatively as conclusions may be inferred or drawn from your silence.

There are 2 areas where the law in Ireland potentially affects your privilege against self-incrimination and your right to silence:

• Your failure to answer certain questions or to provide certain information can allow inferences to be drawn at your trial. For example, your failure to answer a question about why you were carrying a possible weapon or why you were at a particular place

and

• Offences where it is a criminal offence not to answer certain questions or to provide certain information for example, failure to answer questions on your knowledge of possible terrorist offences.

It is important to note this can also apply to refusals to answer questions even if you are not in custody.

An inference is where someone reaches a logical conclusion based on the facts before them, for example, if you are seen running away from a crime scene, someone might infer that you may have been involved in a crime.

Inferences can be drawn from your silence in certain circumstances in any proceedings against you for an arrestable offence under the Criminal Justice Act 1984 as amended by Part 4 of the Criminal Justice Act 2007.

An arrestable offence is an offence for which a person can be imprisoned for 5 years or more.

Circumstances in which inferences can be drawn include:

• If you fail or refuse to account or explain for something: Inferences can be drawn, if at any time before being charged or when you are charged, or when informed by a Garda that you may be prosecuted for the offence, you fail or refuse to account for any object, substance or mark on your person, clothing or in your possession or in any place in which you were when questioned by a Garda.
• If you fail or refuse to account for your presence at a location: Inferences can be drawn if you fail or refuse to account for your presence at a particular place around the time the offence was committed. The Garda has to have a reasonable belief that the presence of the object, substance or mark, or your presence at the place, has a relevance to your involvement in the offence which is believed to have been committed.
• If you fail to mention a certain fact: Inferences may also be drawn if you fail to mention any fact which you then rely on in your defence during the proceedings and which, in the circumstances existing at the time, you could reasonably have been expected to mention when being questioned or charged.

It is not an offence to fail or refuse to answer such questions but the court or jury can take into consideration (when deciding on your guilt or innocence) the fact that you had failed or refused to answer the questions when asked by the Gardaí.

When failure or refusal to provide information may not be used

If no other evidence is put to the court or jury, then they cannot convict you on your failure or refusal to answer questions alone.

It can only be used in connection with other evidence presented to the court or jury in the case which supports your guilt. For example, your failure to answer questions about why you were in a particular place can be used along with other evidence connecting you to a crime committed in that place.

• Your refusal or failure to provide information cannot be used in court:
• If the Garda did not inform you in ordinary, clear, understandable language what the effect of a failure or refusal might be, and
• You were not given a reasonable opportunity to consult a solicitor.

The questioning must be recorded electronically or you must consent in writing to it not being recorded.

Inferences in organised crime offences

Similarly, under the Criminal Justice Act 2006, as amended by the Criminal Justice (Amendment) Act 2009, inferences may be drawn as the result of the failure, in particular circumstances, to answer questions. This applies to the organised crime offences under Part 7 of the Act.

Your privilege against self-incrimination and your right to silence can be affected if you fail to answer certain questions or to provide certain information when asked certain questions under Section 52 of the Offences Against the State Act 1939.

If you are detained under Section 30 of this Act, you must answer certain questions concerning your movements and actions and your knowledge concerning the act of any offence under the Act.

Before asking for this information, the Garda must inform you that they are asking you these questions under section 52 of the Act. You must then be told of the consequences if you fail to or refuse to comply with the request, that is, you are committing an offence. The Garda must explain this in clear, ordinary and understandable language.

The Irish Council for Civil Liberties provide a leaflet Know your rights: Criminal Justice & Garda Powers (pdf).

You can read more about your statements from suspects, confessions and Garda questioning and surveillance and other topics in our section on arrests.