Abstract
In Ireland, the right to silence has been significantly impacted by the legislative introduction of adverse inference provisions. In specified circumstances, with varying threshold requirements, a suspect’s failure to answer questions or provide information during Garda (police) questioning can form the basis of an inference against them at trial. Ireland has not opted in to either Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence or Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. This article examines the constitutional and common law context of the protection of the right to silence in Ireland; the operation, and expansion, of the statutory inference regime; the lack of legislative provision for a right to legal assistance during Garda interview; and relevant European Court of Human Rights jurisprudence. While there are some benefits to overt legislation and safeguards attached to the drawing of inferences from pre-trial silence, the question must be asked whether a detained suspect in Ireland truly has a protected right to silence in real terms, given the proliferation of inference provisions.
Highlights
While the right to silence is recognised as being protected in Ireland under both the Irish Constitution and the European Convention on Human Rights (ECHR), many legislative incursions on the exist
This article begins with an introduction to the Irish criminal justice system in general terms before going on to examine the history of the right to silence in Ireland
It outlines the many legislative interferences with this important right, considering their varying threshold requirements and the safeguards which attach thereto. Related issues such as the consequences of lies in the criminal process, the rules relating to the production of documents, and the taking of forensic samples are discussed, before moving on to outline the Irish law and practice on the right of access to legal assistance in garda custody, which is, of significant relevance to the right to silence
Summary
While the right to silence is recognised as being protected in Ireland under both the Irish Constitution and the European Convention on Human Rights (ECHR), many legislative incursions on the exist. This article begins with an introduction to the Irish criminal justice system in general terms before going on to examine the history of the right to silence in Ireland.
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