Michael McDowell (Dublin South East, Progressive Democrats)

Yes. This is not a general proposition that a jury can look at an accused person being interrogated and staring at the wall and decide that if the person was innocent, he or she would say something. It cannot decide on that basis to convict. The person must be asked about a proposition which he is advancing in his defence. That is the difference. An inference can be drawn from his failure to mention it when questioned, where he later relies on it as part of his case. It is a somewhat different situation.

In the Murray case, the European Court of Human Rights considered the drawing of the inference to be unfair where the person in custody had been denied access to a solicitor for a critical period at the commencement of his detention. That is why the Bill provides expressly for a reasonable opportunity of access to a lawyer as a condition for the drawing of any adverse inference. I believe the Human Rights Commission has suggested that there should be a lawyer present at all times before an adverse inference can be drawn. That has not come from European jurisprudence and this island does not have a history of providing that a lawyer must be present throughout all interrogations. If we did have such a provision, by simply not having a lawyer a person could immunise themselves against the operation of this Bill. The Bill provides for reasonable access.

As Deputy Howlin said, the provisions for drawing inferences in this Bill contain more safeguards than the 1984, 1986 and 1998 Acts. The first condition is that the matter in question called for an explanation. Second, the person cannot be convicted solely or mainly on the inference. In other words, there would have to be a prima facie case of sorts, independent of an inference being drawn. Third, there is an explicit condition of reasonable opportunity of access to a solicitor.

In response to Deputy O'Keeffe's question about the 1996 Act, the Act refers to a member of the Garda Síochána, not the arresting member. This Bill is a well balanced set of proposals. It puts Ireland in a similar position to Britain under the 1994 Act. However, the British Act includes a measure which I have not included in this legislation. Perhaps a future Dáil will consider inserting it. In the English trial process since 1994, at the end of the prosecution case the trial judge informs the accused, in front of the jury, that there is a case to answer and that he is entitled to give evidence and not to give evidence. If he does not give evidence, the jury can draw whatever inference it considers appropriate from it. In case people think I am going out on a limb with this Bill, that provision is not part of this legislation. People might believe it should be, but it is not.

Another point should be borne in mind. Until the 1890s in England and the early 20th century in Ireland, an accused was not competent to give evidence in a trial. The 1924 Act in Ireland, which deals with failure to comment on an accused remaining silent, was passed in the context of a huge change in our criminal procedure. The accused was being made a competent witness, as was his spouse. Until then, an accused was not entitled, as of right, to participate in the trial process. I mention this because some people appear to think that since the dawn of creation the criminal law has always been the same and that the rights of an accused in a criminal trial have always been the same. That is not the case. The criminal trial process has changed dramatically and moved on with time. The accused was not allowed to testify at one stage and was made a competent witness at a later stage. Britain has now gone so far as to provide that if an accused does not take part, a jury can draw an adverse inference generally from that failure to testify.

There are two further questions. First, can the inference be generally corroborative of the prosecution case? Second, should the inference be simply related to the credibility of the accused, which is what I understand Dr. Gerard Hogan's committee sought? My view is that it is more appropriate to have our law in line with the law of Northern Ireland and Great Britain, and to state that it is corroborative of the prosecution case. Let us remember what we are now providing for in respect of section 29, which reads:

Where in any proceedings against a person for an arrestable offence evidence is given that the accused—

(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or

(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,

failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation.

This is crucial. It is not simply a question of where a person was the previous night. This is something which clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be. The section states that:

The court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge's directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material.

Subsection (2) states: "A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure to mention a fact to which subsection (1) applies." It must be a fact relied on in his or her defence. It does not mean the person must testify. It is a fact relied on in his or her defence, therefore, it is the credibility and truthfulness of the entire defence in the case, rather than the credibility of the accused, that is at issue.

I honestly do not see that this is a dramatic change in our law. I tend to agree with Deputy Howlin. Where somebody has been asked a question which demands an explanation at the time, refuses to comment but comes up with the self-same explanation at a later point, common sense demands that a member of a jury looking at that would consider this capable of undermining the allegation of fact being put before him or her at that point.

I find it very difficult to understand what is the objection to this. Juries operate under the rule of law. How is the presumption of innocence or the right to silence affected if somebody puts forward a fact in his or her defence in a case and, at a critical point in the investigation, failed to mention that fact? How are the rights of the accused in those circumstances curtailed or subverted if somebody can draw an inference from that set of circumstances that is adverse to the defence? I do not know and have never seen any cogent explanation for it.

There has been a knee-jerk reaction to this proposal. How is it right that one's presence at a particular place is something which could call for an explanation since 1984 and the presence on one's clothes of a mark or substance could call for an explanation but some other fact which is central to one's defence does not call for this explanation and no inference can be drawn? I do not see any logical reason, if the 1984, 1996 and 1998 Acts were justifiable in any shape or form, we should now say we will keep it narrowly confined to substances and location in a particular place and will not bring into the equation other things such as the money under the bed or a defence that the machine gun was left by the lodger the previous night and the defendant was not aware of it with the defendant producing the lodger from the previous night to tell the court he or she left it there. Why when the defendant was asked about it on the day did he or she not come up with this explanation? Why should a jury try a case with blinkers and why should the criminal justice process preclude common sense inferences being drawn from fairly straightforward sets of circumstances?

See this speech in context