Michael McDowell (Dublin South East, Progressive Democrats)

We will deal with that at a later stage. The distinction I draw is that we made such a provision in 1998, as well as a provision on drug trafficking offences, whereas since 1994 it has been the general law in the United Kingdom that a jury can draw an inference from a failure to mention a fact. That has been in operation for the past 12 years. I am confronted by the immediate problem that gangland suspects in detention rightly believe that unless they are tried for one of the two statutory exceptions, their silence has no implication whatsoever. That is currently happening in respect of persons arrested and questioned, and I have to take immediate action in that context.

I am not abrogating the right to silence. That right is internationally recognised but nowhere except, perhaps, Ireland and the United States, is it prohibited to draw inferences from a failure to mention certain matters. Internationally understood, the right to silence is that nobody can be compelled on punishment to incriminate him or herself or risk a prosecution due to a failure to answer a question which would be incriminating. That is the meaning of the right to silence. It is bogus for some people in Ireland who pretend to be knowledgeable or stress their status as practitioners to claim otherwise. It is not an abrogation of the right to silence to say that someone can exercise it but may face implications by doing so.

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