Brendan Howlin (Wexford, Labour)

I will not rehearse the ground already well travelled by my colleagues. I approach this legislation as a non-lawyer and as a practical citizen. Some of the niceties of court bamboozle people. For example, a person who has heroin on the heel of his or her shoe might not give any explanation. The notion that he or she is not required to give any explanation strikes most people as odd. As Deputy O'Keeffe said, the Tánaiste needs to explain two things so that we can have confidence that we are moving in the right direction. While I do not wish to sound like a total Luddite in these matters, the right to silence seems to be a sacred cow that cannot be touched or tampered with. Changing it is almost regarded as being a fundamental assault on personal liberty.

In the past the House has modified that right in certain circumstances. The Tánaiste is now proposing that we broaden it to other offences while introducing more safeguards to balance it. Two questions, which have already been posed, need to be answered. Why is the Tánaiste not transposing the exact proposals from the Law Reform Commission? Is he confident that the proposals will have practical effect given that the law in this area in the past has not had the practical effect we would have wanted?

People claim that the right to silence is being changed. I invite the Tánaiste to set out clearly the changes proposed here. It is proposed that they would apply to proceedings related to an arrestable offence. Inference may be drawn from a failure to mention any fact relied upon in the person's defence in subsequent proceedings. Inferences may be drawn from failure to mention a fact at the time of being questioned, charged or informed which in the circumstances existing at the time clearly called for an explanation when so questioned, charged or informed. Failure to mention facts could arise during questioning, upon being charged or upon being informed by the garda that the person might be prosecuted for an offence.

These relate to the timing. When drawing an inference, the court or the jury can have regard to the time at which the fact is first mentioned by the accused. The Tánaiste talked about sequencing so that the judge or jury can have regard to the disclosure of the information. Failure to mention a fact can be treated as corroborative of other evidence but not convincing evidence on its own.

Tomes have been written on this area and we need to give as simple an explanation as possible to the public as to what is proposed. How does it change the clear and long-established right to silence and be protected from self-incrimination? Why is the provision necessary and why will it be effective? I invite the Tánaiste to present his argument in the clearest possible terms why this proposal represents the correct and effective formula.

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