Michael McDowell (Dublin South East, Progressive Democrats)

Subject to some comments which I will make later, it has been the case since 1994 in England and Wales — I am not sure about Scotland — and since 1988 in Northern Ireland that inferences can be drawn from one's failure to mention certain facts, when one is being interviewed by the police, which one later relies on as part of one's defence. Does that trench from the right to silence? The right to silence has never been the absolute right that is contended for. When I went to King's Inns many years ago, for example, I clearly remember learning that if a girl had been raped, was confronted in the aftermath with the alleged rapist, identified him as the rapist and he remained silent in those circumstances, the jury was entitled to have regard to that in determining whether her accusation was true. That was part of the law at the time.

It moved from there to a proposition that no inference could be drawn from a failure to make a statement when in Garda custody. That was the situation up to 1984, when we provided for Garda detention for the purpose of questioning. That law provided that presence at a particular place or marks on one's clothing were circumstances where inferences could be drawn from the person's failure to account for them when asked about them in the course of interrogation, provided the questions were put to the person by the arresting garda. In the 1996 and 1998 Acts, the matter was moved further.

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