Equality of arms' between the suspect interrogated in garda custody and the gardaí?

• Author: Pat Mcinerney
• Position: LL.B, LL.M, Solicitor, Attorney-at-Law (New York), Lecturer in Law, National University of Ireland, Galway, PhD Candidate, University College Cork
• Pages: 1-33

2010] “Equality of Arms” 1

“EQUALITY OF ARMS” BETWEEN THE

SUSPECT INTERROGATED IN GARDA

CUSTODY AND THE GARDAÍ?

Encroachments on the Right to Silence, the proposed Safeguard

for the Suspect in the form of Legal Advice and the Consequent

Implications for Garda Accountability

PAT MCINERNEY *

I. NATURE AND STATUS OF THE RIGHT TO SILENCE

The right to silence, or as it has also been broadly labelled,

the privilege against self-incrimination, is widely recognised

across the democratic world as being an integral component of a

fair and balanced criminal justice system, particularly in those

countries operating under an adversarial/accusatorial process.

Indeed, it garners international support under the much-esteemed

United Nations Covenant on Civil and Political Rights.1

Moreover, the European Court of Human Rights (ECtHR) has

consistently held that the right to silence is inherent in the right to

a fair trial protection of Article 6(1) of the European Convention

on Human Rights (ECHR).2 However, the right to silence has

quite a chequered past in Ireland, ranging from arguments as to its

very existence, to the legal source of such a right, and, most

importantly in recent times, to the extent and parameters thereof.

The basic underlying rationale of the recognition and

protection of a right of suspects to remain silent can be justified

on several grounds: first, to ensure that any statements and/or

confessions made by a suspect are free and voluntary, not

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* LL.B, LL.M, Solicitor, Attorney-at-Law (New York), Lecturer in Law,

National University of Ireland, Galway, PhD Candidate, University College

Cork.

1 United Nations Covenant on Civil and Political Rights (1976) UNTS 171,

Article 14(3)(g) conferring a right on a suspect, inter alia, not to confess guilt

under compulsion.

2 See for example Funke v. France (1993) 16 E.H.R.R. 297; Murray v. United

Kingdom (1996) 22 E.H.R.R. 29; Saunders v. United Kingdom (1996) 23

E.H.R.R. 313.

Judicial Studies Institute Journal [2010:1

2

improperly coerced out of fear of sanction, or in the hope of a

favourable disposition of any potential action against him/her. By

conferring a right on a suspect to refrain from proffering any

information against his/her will, not only does it confer a direct

benefit on the suspect, it also assists the state, in having a direct

bearing on the credibility of any such statement voluntarily made

by the suspect and in helping to secure justice and ensure the

avoidance of potential miscarriages of justice.3 The veracity of

any statement must be shrouded in significant doubt where it is

proffered in circumstances involving some degree of compulsion.

Secondly, on a broader level, the existence of a right to remain

silent is a necessary feature of a criminal justice system which

operates on the basis of a presumption of innocence, and which

imposes an onus on the prosecution to prove the guilt of the

accused beyond a reasonable doubt, without compelling a suspect

to assist by way of self-incrimination.4 In addition to the above,

the Balance in the Criminal Law Review Group: Final Report5

draws together cogent and strongly persuasive arguments for the

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3See Murray v. United Kingdom (1996) 23 E.H.R.R. 29, at para. 45. See also

Hogan, “The Right to Silence after National Irish Banks and Finnerty” (1999)

6 D.U.L.J. 176, 179, where it is suggested, quite correctly, that encroachments

upon the privilege against self-incrimination/right to silence present risks to the

innocent in the form of potential miscarriages of justice, particularly the

inarticulate and/or socially vulnerable accused.

4 The maxim of medieval canonical-roman law, nemo tenetur accusare

seipsum (no one is obliged to accuse oneself), is one of the earliest statements

of the principle upon which the privilege against self-incrimination was based,

of which the right to silence as we now recognise it is a particular extension.

Though (as discussed in note 2 above and the accompanying text) the ECtHR

has positioned the right to silence under Article 6(1) of the ECHR, reference

has also been made by the court in this context to Article 6(2), which protects

the presumption of innocence and prosecutorial burden of proof – see Saunders

v. United Kingdom (1996) 23 E.H.R.R. 313, at 368, where the right not to

incriminate oneself, which prohibits the prosecution resorting to oppression or

coercion in obtaining evidence involuntarily from a suspect, is described as

being “closely linked to the presumption of innocence contained in [Art. 6(2)

of] the Convention”. Berger points out, however, that this link between the

right to silence and Art. 6(2) has not been subsequently endorsed by the

ECtHR, who have declined to rule on the matter – “Europeanizing Self-

Incrimination: The Right to Remain Silent in the European Court of Human

Rights” (2006) 12 Columbia Journal of European Law 339, 344.

5 (Dublin: Stationery Office, 2007).

2010] “Equality of Arms” 3

continuing existence of a substantive right to silence which,

notwithstanding the constraints imposed by the Constitution and

Article 6(1) ECHR, according to the authors, inhibit them in

recommending any general relaxation of the right.6

The four grounds advanced by the Review Group, which

all tend to put paid to the traditional argument advanced that the

innocent have nothing to gain and in fact betray any notion of

innocence by remaining silent, can be summarised as follows.

First, an accused may be shocked and overwhelmed by the

situation in which he finds himself; distressed, upset and unable

to think clearly as to cogent facts or reasons evidencing

innocence. Secondly, the revelation of an exculpatory fact may be

undesirable due to the personal embarrassment which may ensue

therefrom, such as, for example, confirmation of an alibi in the

form of a mistress. Thirdly (and it is submitted of most persuasive

value in this regard) is the fact that the significance, implications

and constituent elements of the alleged offence and/or situation

may not be at all clear to the suspect, requiring at the very least

prior legal advice to become better appraised of the situation.

Fourthly, the suspect may of course be uneducated, inarticulate

and/or vulnerable, and feel that silence is preferable given those

particular characteristics.7 Any analysis therefore of the

legislative encroachments upon the parameters of the right to

silence must, in considering the legitimacy of same, bear in mind

the underlying rationale for the existence and protection of the

right in the first instance.

It is quite clear that the common law has recognised a

right to silence for many centuries, with Shanley J. in the High

Court in Re National Irish Banks Ltd8 tracing it back to the 17th

Century in England.9 Indeed, the application of this common law

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6 (Dublin: Stationery Office, 2007) at p. 23.

7 (Dublin: Stationery Office, 2007) at pp. 20-23.

8 [1999] 3 I.R. 145.

9 [1999] 3 I.R. 145, at 153. There is some dispute regarding the exact origins of

the right to silence at trial as we now understand it, with John Langbein

asserting quite persuasively that it can be traced to 18th century England as a

particular consequence of, inter alia, the advent of defence lawyers in the

criminal trial – see generally Langbein, “The Historical Origins of the Privilege

Against Self-Incrimination at Common Law” (1993-94) 92 Michigan Law

Review 1047.