Jim O'Keeffe (Cork South West, Fine Gael)

We are dealing with serious issues and it is important to have adequate time to tease out the implications of the proposals. The Criminal Law Review Group, under the chairmanship of Dr. Gerard Hogan SC, dealt with the issue of the right to silence in a 50-page preliminary report and, more extensively, in a final report containing 100 pages, so there are obviously many angles to the issues. It is also interesting that the proposals of the Minister do not seem to accord with the recommendations of the group, which raises questions.

The criminal law review group decided to leave until its final report the question of amending the law on existing practice, so as to permit comment by the prosecution and the trial judge on the fact that an accused has not given evidence at a trial. To make the issue even more complex, in the final report a majority of the group considered that neither the trial judge nor the prosecution should be permitted to comment on the failure of the accused to give evidence at his or her trial. Even within a very experienced and highly qualified group, there is a difference of opinion on that point.

In considering the issue of inferences we should have before us not just the views of the Criminal Law Review Group, the Irish Human Rights Commission and others, but also the view of practising lawyers outlining the benefits to be derived from an approach dealing with inferences. We are not starting from scratch; the Bill proposes to amend sections 18 and 19 of the Criminal Justice Act 1984. We are not talking about entirely new legislation but legislation that has been in place for more than 20 years.

What is striking about existing provisions and other measures in law relating to the drawing of inferences from silence is how rarely they are used, which gives rise to questions. Why are they so rarely used?

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