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

AuthorPat Mcinerney
PositionLL.B, LL.M, Solicitor, Attorney-at-Law (New York), Lecturer in Law, National University of Ireland, Galway, PhD Candidate, University College Cork
2010] “Equality of Arms” 1
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
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
* LL.B, LL.M, Solicitor, Attorney-at-Law (New York), Lecturer in Law,
National University of Ireland, Galway, PhD Candidate, University College
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
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
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
6 (Dublin: Stationery Office, 2007) at p. 23.
7 (Dublin: Stationery Office, 2007) at pp. 20-23.
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.

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