Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

I move amendmentNo. 95:

In page 25, to delete lines 10 to 46, to delete page 26 and in page 27, to delete lines 1 to 4 and substitute the following:

"27.—The Act of 1984 is amended by the insertion of the following two words "or mainly" after "solely" in Section 18(1).".

This concerns the section allowing inferences to be drawn in certain circumstances, representing a major shift in the law apart from the provisions of the Offences Against the State Act, which have been used only on rare occasions of late and has not been effective.

There needs to be a protection for people to prevent them from incriminating themselves. The Dean Lyons case is an example of how somebody can be coerced into incriminating himself. In other jurisdictions, in particular the United States, a person is allowed to have a solicitor present during interview. If television programmes about the US justice system are anything to go by, I do not know how the police ever get any convictions because solicitors tell their clients not to say anything.

People are wary of their answers being recorded and how they might look. They might have reasons for not explaining their whereabouts or for refusing to account for marks on their person or objects in their possession, which might be innocent or, perhaps, the result of an extra-marital affair which they do not want to put in writing or give as video evidence. Thankfully, videos will not now be as freely available or be used against individuals, as has happened. People have had to produce them for their crime bosses and I can envisage circumstances where men might have to produce them for their wives to explain why they were in a certain place at a certain time.

The interference with the right to silence and the right not to incriminate oneself is a concern and it has been raised in connection with inferences drawn from the silence of people brought before courts or interrogated under the Offences Against the State Act. I do not have time to go into great detail on this and to adduce examples from other jurisdictions, as I would like. Has any study been done on the consequences of people remaining silent or refusing to account for movements, marks on their person or objects in their possession? Has any study shown that reserving that right severely impedes investigations and prevents convictions in the courts?

All Members have a copy of the documentation of the Irish Council for Civil Liberties and the Irish Human Rights Commission, so I will not quote from it. Thankfully, it highlights their concerns, as is their right and obligation to do so. If we had more time, we could have gone into greater detail on their comments.

I urge caution on this proposal. My preference is for the section to be withdrawn to ensure we do not trample upon rights gained over many years and undermine protections for people against incriminating themselves or owning up to something they did not do. The potential for miscarriages of justice has been demonstrated in a number of cases not only in this State, but in others.

See this speech in context