Statements from suspects

You have the right to silence and the right not to incriminate yourself.

These rights protect you from being forced to make statements which result in an admission of guilt. In Ireland, these rights are recognised under:

• Article 38.1 of the Irish Constitution (Bunreacht na hÉireann)
• Article 6 of the  European Convention on Human Rights

Right to be cautioned

A statement is anything a suspect says about a possible offence being investigated. Often statements are written down and are then signed by a suspect.

The following words must be spoken by the Gardaí (Irish police) before they can take a statement from a suspect:

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

This is known as the caution. It means that you are informed that there is no legal obligation on you to say anything or to make a statement.

If you make a statement to the Gardaí and the Garda gave you a caution before the statement was taken, then the contents of the statement can be used in a court case or trial.

The rules covering the taking of statements from suspects are called the Judges’ Rules.

The 9 Judge’s Rules are a guide for the Gardaí when investigating a crime to ensure that suspects are treated fairly. The rules seek to ensure that any suspect making a statement to the Gardaí is informed of their right to silence by way of the caution.

Any statement taken from a suspect, in a way which breaks these rules, is likely not to be allowed as evidence by a judge conducting a criminal trial.

Statement taken in breach of Judge’s Rules

There is a difference between a statement you made involuntarily and a statement taken in breach of the Judges’ Rules.

An involuntary statement must be excluded in a trial, but a statement taken in breach of the Judges’ Rules can be allowed by the judge (if the judge decides). This is because the Judge’s Rules do not have the force of law.  So, the judge has discretion to include or exclude such statements.

Confessions

Often, a statement by a suspect includes a confession admitting their part in a crime. If you make a confession in a statement, then the court will look very closely at the circumstances which surrounded the making of the confession.

The most important aspect of a confession (or statement) is whether you volunteered it.

If you make a confession (verbally or in writing), before a trial or court case, it can only be used as proof against you if it was a free and voluntary confession.

Your confession is free and voluntary, if you are not influenced by hope or fear, from a threat, a promise or wrongful persuasion.

How does the court know if a statement is involuntary?

The courts typically consider:

• Were the words used by the person in authority, objectively viewed, capable of being a threat or inducement?
• Did the accused understand them as a threat or inducement?
• Was the statement the result of a threat or inducement?

All three questions must be answered yes for the statement of confession to be considered involuntary.

Can interviews be recorded in Garda stations?

Certain interviews must be recorded electronically in Garda stations under the provisions of:

• Section 30 of the Offences Against the State Act 1939
• Section 4 of the Criminal Justice Act 1984
• Section 2 of the Criminal Justice (Drug Trafficking) Act 1996
• Section 42 of the Criminal Justice Act 1999
• Section 50 of the Criminal Justice Act 2007
• Section 16 or 17 of the Criminal Procedure Act 2010

Your interview with the Gardaí must be electronically recorded if the recording equipment is in the station. You can read more about detention after arrest.

For the courts and the suspect, the recorded interview may prove whether or not the statements were made voluntarily.

Read more about your rights during a Garda interview.

You must be given a caution

If you decide to make a statement as a suspect, the Gardaí must tell you of your right to remain silent.

This caution must also be included in the top line of the written statement.

The Gardaí should not cross-examine you if you are making a statement. However, Gardaí can ask you questions to clarify anything you say which is unclear.

Writing the statement

The contents of the statement are then written down, either by you or by the Gardaí. Normally this is done by the Gardaí, but you are allowed to write the statement if you wish.

When you are finished making your written statement, the Gardaí either read out the statement to you or invite you to read the statement yourself.

Changing your statement

When you have read the statement, the Gardaí then invite you to make any changes or add to the statement if you want to. This is noted at the end of the statement in the following way.

“This statement has been read over to (or by) me, and I have been invited to make any corrections thought necessary in it. It is correct”.

Signing your statement

The Gardaí then ask you to sign the statement. The signature should be written on the next available line and should be witnessed by those present. In the case of a juvenile, the signature should also be witnessed by a parent, adult relative or guardian.

If you refuse to sign the statement, the Gardaí insert the words “Declined to sign” and they include your reasons for refusing. If you cannot read or write, you are asked to make a mark in place of a signature.

Getting a copy of my statement

If you make a statement to the Gardaí, you are entitled to a copy of the statement free of charge. If you engage a solicitor after making your statement, then your solicitor is entitled to a copy of the statement free of charge.

If another person has been charged with the same offence and their statement was taken separately, the Gardaí should not read this statement to you. You should, however, be given a copy of that statement and the Gardaí should say nothing that would invite a reply.

Copy of electronically recorded statement

If you make a statement to the Gardaí and it is electronically recorded then you or your solicitor is entitled to a copy of the electronic recording, unless it would prejudice an ongoing investigation or endanger the safety, security and wellbeing of another person. There is no fee for this recording.

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

You can read more about your right to silence, confessions and Garda questioning and surveillance and other topics in our section on arrests.