Dermot Ahern (Louth, Fianna Fail)

This section introduces a new section 72A to the Criminal Justice Act 2006. The new section will permit inferences to be drawn as a result of the failure in particular circumstances of an accused to answer questions. It will apply to organised crime offences under Part 7 of the Criminal Justice Act 2006, including an additional offence of directing. As with other aspects of the Bill this provision is not new; it is based on section 2 of the Offences against the State (Amendment) Act 1998, as amended by section 31 of the Criminal Justice Act 2007. Section 2 of the 1998 Act applies specifically to persons accused of membership of an unlawful organisation under section 21 of the Offences against the State Act 1939.

As has been acknowledged, a number of safeguards contained in the inference provisions in Irish law are replicated in this section, such as that a person shall not be convicted solely or mainly on the inference drawn from a failure under this section; the defendant must be told in ordinary language when questioned what the effect of a failure under the section might be; the defendant must be afforded a reasonable opportunity to consult a solicitor prior to a failure occurring and the questioning of the person by a member of the Garda Síochána must be recorded by electronic or similar means unless the person consents in writing to it not being so recorded.

As I indicated previously, concern was expressed by the Human Rights Commission that the meaning of words in section 72A(1), specifically, "question material to the investigation of the offence" could apply to a very broad range of questions. The commission recommended that where such inferences are to be drawn it should only arise under narrowly defined circumstances. Following consultation with the Attorney General and with a view to addressing this concern, an amendment was tabled in the Dáil to replace section 72A(7) of the provision. This new section specifies the meaning of "any question material to the investigation of the offence". It sets down the questions that can be put to a person and links them to the specific evidence provisions of the relevant offences. For instance, section 72A(7)(b)(i) allows a question relating to any statement or conduct of the type referred to in section 71A(3) as inserted by section 5 of the Bill. Section 71A(3) concerns the directing offence and provides that: "Any statement made orally, in writing or otherwise, or any conduct, by the defendant implying or leading to a reasonable inference that he or she was at a material time directing the activities of a criminal organisation shall, in proceedings for an offence under this section, be admissible as evidence that the defendant was doing such at that time."

Sections 18, 19 and 19A of the Criminal Justice Act 1984, as amended and inserted by the Criminal Justice Act 2007, also allow inferences to be drawn in certain circumstances. Section 18 provides for inferences from failure or refusal to account for objects, marks etc. Section 19 provides for inferences from failure or refusal to account for an accused's presence at a particular place. Section 19A provides for inferences from failure of an accused to mention particular facts. These provisions apply to arrestable offences, that is offences carrying a penalty of five years' imprisonment or more, and consequently apply to the organised crime offences under the 2006 Act.