The Right to Silence and Corroboration

the emperors innuendo

An individual was charged with IRA membership on the basis that he refused to answer questions put forward to him by the Gardai that he was a member of the IRA. The judge said that his refusal to answer questions amounted to corroboration. How can someone's right to remain silent amount to corroboration?

MagicSean

Because the law says it can.

the emperors innuendo

Is this the case in all common law jurisdictions or is it specifically a result of Irish legislation?

Farcear

Irish legislation.

Check: "Inferences to be drawn in certain circumstances" at http://www.citizensinformation.ie/en/justice/arrests/right_to_silence_in_criminal_cases.html

NoQuarter

The right to remain silent, as with all rights under the Constiution, is not absolute. Even the right to life is qualified (such as killing a siamese twin to save the other).

Certain provisions of legislation allow for the court to draw inferences from an accuseds refusal to answer questions or to account for articles in their possession such as if a person is found with explosives, they are presumed to have them for an unlawful purpose until they prove the contrary, which is technically a breach of "innocent until proven guilty".

The man in your example was convicted under s21 of the Offences Against the State Act, 1939 so there will be a provision in there somewhere that allows the court to use his silence as corroboration.

Some things to note are
1: The legistaure takes all right very seriously and only limits them in exceptional circumstances and
2: Any inference drawn from the right to silence, isnt hard proof. A person CANNOT be convicted on remaining silent alone. It is simply corobboration and is just another thing to consider in light of all the other evidence.

I hope that answers your question on the legal side of things.

ResearchWill

the emperors innuendo wrote: »

An individual was charged with IRA membership on the basis that he refused to answer questions put forward to him by the Gardai that he was a member of the IRA. The judge said that his refusal to answer questions amounted to corroboration. How can someone's right to remain silent amount to corroboration?

If one of the statutory interferences with your right to silence is invoked, there is usually a protection in that your silence can not be the only evidence against you. In this case the Judge did not decided that the refusal to answer was corroboration, according to the report "He said the belief evidence of Chief Supt O' Sullivan was corroborated by Farrell's failure to answer material questions."

The court decided that the belief evidence of the Garda was the corroboration required. In certain offences it is enough for the Garda to believe you are a member, to prove you are, I belief must also be corroborated.

My own opinion and it's just that, my opinion, is that this will not be upheld on appeal, as the argument does not hold water, if I a Garda believes you are a member of an organisation, asks you a question about membership and you refuse to answer, then my positive belief together with your refusal to answer is proof of your crime, not good enough proof in my opinion. In that both proofs are week, both require corroboration, it just does not sit well with me.

Well I just checked the CCA has upheld a similar case DPP v Binead 2007 1 IR 374.

The relevant sections are Section 3 (2) Offences Against the State Amendment Act 1972

(2) Where an officer of the Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.

And section 2 (1) of the offences against the state amendment Act 1998

2.—(1) Where in any proceedings against a person for an offence under section 21 of the Act of 1939 evidence is given that the accused 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, failed to answer any question material to the investigation of the offence, then the court in determining whether to send forward the accused for trial 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 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 the offence, but a person shall not be convicted of the offence solely on an inference drawn from such a failure.

Procrastastudy

Quinn v Ireland may be of some interest to you OP.

chops018

Rock .v. Ireland and Heaney .v. Ireland are two good cases on the right to silence and how inferences can be drawn.

Finnbar01

chops018 wrote: »

Rock .v. Ireland and Heaney .v. Ireland are two good cases on the right to silence and how inferences can be drawn.

How do I actually look up those court cases?

chops018

Finnbar01 wrote: »

How do I actually look up those court cases?

Hmmm, they could be a bit old to get online. Maybe hard copies of the Irish Law Reports in some colleges? Or else you could look up articles on the right to silence and reports and they would provide info on it. I know the Balance in the Criminal Law Review Group had good info/arguments on it I read before:

http://www.inis.gov.ie/en/JELR/BalanceRpt.pdf/Files/BalanceRpt.pdf

Also this:

http://www.flac.ie/download/pdf/mfarrell_right2silence_paper_24may07.pdf