Ivana Bacik (Independent)

I state my opposition to the section which purports to add a new section 72A to the Criminal Justice Act 2006 providing that inferences may be drawn from silence. I am conscious that there are a number of inference drawing provisions in the Offences Against the State Acts and in the Criminal Justice Act 2007. However, I am also conscious of the need for safeguards. On Second Stage, the Minister stated he had taken on board some of the criticisms of the Human Rights Commission on this provision in particular and had inserted new safeguards. I have examined it but I still do not see that he has answered the primary concerns of the Human Rights Commission. In its observations it pointed out that in drawing adverse inferences from an accused's failure to answer a material question the court or the jury should be satisfied that the circumstances clearly called for an explanation from the accused. It also asked that section 9(1) should not apply unless the accused had first been provided with legal advice. It also suggested that it would be preferable as a matter of best practice for an accused person to have a legal adviser present throughout interrogation, which is a much broader recommendation relating to police interrogation generally and I share its view on that.

Leaving aside the broader point, I ask the Minister whether he considered placing the stronger protections that the Human Rights Commission recommended into section 72A and, if not, why he did not do so. Section 72A(2) states that the defendant must be told in ordinary language about the effect of a failure and must be afforded reasonable opportunity to consult a solicitor. Why did the Minister not go further, as the Human Rights Commission suggested?