Right to Silence Presumption of Innocence, Arrest, Detention without Trial – April ’08 – Q5

Right to Silence Presumption of Innocence, Arrest, Detention without Trial – April ’08 – Q5

Issues here are Kenneth’s: arrest, detention, right to silence and whether he is presumed innocent until proven guilty for the sexual offences charge.

The Gardaí have various powers summarily to arrest a person without warrant. Now brought under statutory remit by the Criminal Law Act 1997. Under S. 4, a Garda can arrest without warrant any person who is “reasonably suspected” of committing, or of having committed, a criminal offence carrying at least five years’ imprisonment as a penalty. The reasonableness of the suspicion must be proved subsequently at the trial or the detention will be deemed unlawful and any consequential confession inadmissible. On the parameters of “reasonable belief”, see People DPP v Cleary. Persons arrested without warrant are entitled to be told the grounds upon which they are being detained, in ordinary language and in general terms, unless they should already know the reason or they make it difficult to do so, e.g. by running away or causing commotion. The Supreme Court has adopted this with approval, in The People v Walsh [1980], the test laid down by Viscount Simon in Christie & Morris v Leachinsky [1947]. Upon arrest, the person must be conveyed to a Garda station with reasonable dispatch. See People DPP v Walsh [1980] affirmed again in DPP v Cleary; DPP v Finn. Given that the power of detention for questioning is regarded by the common law to constitute a serious abridgment of a person’s right to liberty, its legal basis is subject to strict and literal interpretation by the courts. In bringing the person into Garda custody, “reasonable expedition” must be observed, according to common law principle. In People (DPP) v Cleary, a delay of 30 minutes before the suspect was driven to the station did not constitute unreasonable delay. By contrast, a delay of two hours — during which time the suspect was searched for drugs in a shed — was unreasonable and invalidated the arrest in DPP v Boylan. The place of detention authorised by the provisions is “a Garda Síochána station, a prison or some other convenient place” If a Garda purports to exercise S. 4 in an alternative manner — as in People (DPP) v Cleary by questioning the suspect in his sister’s house prior to taking the detainee to the station — the lawful authority for the interview is lost and any resulting admissions are generally inadmissible. “Some other convenient place” has been interpreted to refer to a convenient building such as a station or prison but not to a vehicle.

 In relation to the second issue; Art 40.4.1 of the Constitution states:

“No citizen shall be deprived of his personal liberty, save in accordance with law”.

The burden is upon the prosecutor strictly to prove the legal basis for detention of the accused. S. 4 Criminal Justice Act, 1984, as amended by S. 9 Criminal Justice Act, 2006, of the sets outs rules involved in the arrest and detention of a suspect; a person arrested for a serious offence may be questioned initially for 24 hours in a Garda station after his arrest. The court has clarified from time to time the limits of that power of detention, conscious that it may be exercised on suspicion only. A person must be brought to the station following an arrest. In the case DPP v John Cleary C.C.C. (Herbert J.) (2001) the suspect was arrested at home. He was detained at home for thirty minutes while his home was searched. He made admissions during that detention. The court ruled those admissions inadmissible because he had not been taken to the station promptly. However, the temporary absence on legitimate business from the station did not invalidate the lawfulness of a suspect’s S. 4 detention Philip Clarke v Member in Charge of Terenure Garda Station S.Ct. [2002]. Access to a solicitor is safeguarded under the Constitution and under Article 6 (3) c of the ECHR. Once the solicitor arrives in the station, the arrestee has a right to immediate access with him or her; this was established in the Supreme Court case of DPP v Healy [1990]. As part of this right of immediate access, the detainee must be permitted to communicate in private with the solicitor. The Supreme Court later held that the solicitor is not entitled to be present at the interviews held with the suspect, in the case of Lavery v The Member in Charge, Carrickmacross Garda Station [1999].

While detained a person has a general right not to answer questions during Gardai investigations and interrogations. This right is protected under Article 6 of the ECHR. S. 30 Part 4 of the Criminal Justice Act, however, provides that in any proceedings against a person for an arrestable offence, if the person failed to mention anything on being questioned by a member of the GS, which was later relied upon at trial, the court may draw such inferences from the failure as appear proper, and such inferences can have corroborative value. The accused must be told what the effect of the failure to mention a fact might be, and must also be afforded reasonable opportunity to consult with a solicitor. This section can only apply if the interrogation is recorded by electronic or similar means. It has been accepted in the High Court in Heaney v Ireland (1994) that the right to silence is set down in Article 38.1 of the Irish Constitution. The judge in that case was of the view that the fairness of a criminal trial could be damaged by events that took place prior to it. That includes the issue as to whether or not a person being interviewed by the Gardai, before being charged, was afforded his or her right to silence. If not then the trial could be compromised and thus would be in breach of Article 38.1 of the Constitution. The decision of the High Court in Heaney v Ireland was upheld in the Supreme Court, which affirmed the right to silence in police custody as having a Constitutional Status. However, the Supreme Court also stated that the Constitutional right to silence only applied to anything that might offer the police evidence, which was self-incriminating. In other words the Constitutional right to silence could not extend to not answering police questions that would not involve self-incrimination such as providing your name and address when asked or providing your date of birth or nationality when asked as this information would not normally be self-incriminating. The right to silence and privilege against self-incrimination in Ireland is not an absolute right.  However, in the vast majority of criminal offences this right does apply.  When you are accused of a criminal offence you will enjoy the right to silence unless you are informed by the Gardai that the particular offence for which you are arrested places a certain obligation on you.  The Gardai must also inform you of the consequences if you fail to comply.
The final issue is whether there is a presumption of innocence for sexual offences. The law demands that the state bear the burden of proving, beyond reasonable doubt, the charge, so the presumption does apply to sexual offences. Article 6 (2) of the ECHR states that:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

An example of this from case law can be seen in DPP v. D O’T (2003) where

Hardiman J. stated that:

“…the presumption of innocence is a vital, constitutionally guaranteed, right of a person accused in a criminal trial and that the right has been expressly recognised in all of the major international human rights instruments currently in force”.

So if we apply all of this to Kenneth’s case we shall be able to advise him. In relation to his arrest it is within the Gardai’s powers to arrest and detain without charge, a person who is reasonably suspected of committing a sexual offence. However, the arresting Garda’s failure to inform Kenneth of the right legal authority for his arrest may constitute false imprisonment as in the Leachinsky case already mentioned. The next issue is the delay of 45mins before Kenneth was taken to the Garda station. Case law provides that “reasonable expedition” must be observed in bringing the suspect into Garda custody. If there is a delay anything admitted may not be used as evidence in the trial, as in the case of DPP v John Cleary. It will be up to the trial to decide whether the delay was reasonable but it should be argued that when the Gardai were building their “reasonable belief” for suspecting Kenneth for a charge of sexual offences they should have previously checked if he was on the sexual offenders list, if found to be unreasonable it may invalidate the arrest.

In relation to Kenneth’s detention, for a sexual offence charge he may be detained for questioning for up to 24 hours. Under the Constitution and Article 6 (3) c of the ECHR he is also entitled to access to a solicitor. According to the decision established in DPP v Healy [1990], he has the right to immediate access when the solicitor arrives and the Gardai failed to do this as there was a waiting period of thirty minutes, while the Member in charge was interrogating him, before he was allowed access. He has the right to remain silent while been interrogated but this right can have effects on the court proceedings as he may be denied reliance on information which he failed to disclose to the GS. He must be informed of this by the interrogating Garda and the fact that he is asking the solicitor after the interrogation shows that the Garda failed to do this. I would advise him to disclose to the Garda his alleged alibi and note that he was not informed of his right to silence and the effects it may have. This may mean the trial may be compromised and would be in breach of Article 38.1 of the Constitution. Similar to the decision reached in Heaney v Ireland. In relation to Kenneth’s question in regards presumption of innocence under Article 6 (2) of the ECHR and the decision in DPP v. D O’T (2003) we can see that anybody who is charged with an offence is presumed innocent until it is proven, beyond reasonable doubt, that they are  in fact guilty.

Conclude