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The Right To Silence
Read more about: Coalition, Law, Progressive Democrats 
Edit: It seems he has changed tack slightly since 2003 when he dropped similar plans to curb the right to silence where he said: “I am more concerned that a trial should be about the facts of the case rather than what a person said or did not say in a police station,” (from the Indo 2003)
You can bet your bottom dollar the latest front has been opened between Minister for Justice McDowell and most of those who love to hate him. I am no legal scholar and come at the right to silence from a political philosophy perspective, thus making my contribution short (I ask our other learned colleagues out there to get stuck into this argument if they will).
The right to silence under interrogation from the state is but one of the buffers against excessive force in interviews. All of us as citizens have the right to presumed innocence and the state has no place in beating a guilty plea from us. This much we all agree on.
To my mind the removal of the right to silence opens up an appalling menu of options for state forces.
1) The subject remains silent anyhow and the state must proceed to procure an utterance on the event in question. How can they do this?
To my mind there are two main ways, lock the person up until they talk—making them guilty in the eyes of the public as the jail term is associated with a crime they haven’t been charged with—or use physical means of procuring statements.
I’m not saying Gardai are forceful in their interviews presently (others might), only that removing the right to silence goes hand in hand with giving interviewers power to make someone speak. That right to silence is more than a gloss of rights, it is a fundamental barrier to excessive force in the interview room.
If the state becomes entitled to an answer, is it not entitled to break the will of a person who chooses to remain silent?
Clearly removing the right to silence is equal to removing the presumption of innocence.
Much more concerning though, is the effect on the Gardaí of giving them the right to bully statements out of people or, as proposed today, by allowing the prosecution to bring up past convictions of the accused.
Has no one thought of how the Gardaí would respond to this? We already know of appalling misconduct, and a willingness to forge evidence from start to finish such as the ‘confession’ of Dean Lyons.
If the Gardaí can bring up past convictions, then when they are under pressure to get a conviction, why should they not just arrest everyone in the district who has a record of committing that type of crime?
The Gardaí could just keep going until they got someone who was unlucky enough not to have an alibi, and charge them. He says he’s innocent? Well, he would, wouldn’t he? But he’d done it before, and it can’t be a coincidence that he has no alibi, so he must be guilty…
Hasn’t he also signaled the idea of introducing previous convictions to court cases and allowing people’s social acquaintances to become evidence in a trial?
Call me old fashioned but I like seeing people getting tried based on the evidence available to the court on that offence and no other; but then again McDowell has shown he is willing to look past the inability of the DPP to mount a case in the past, so it’s hardly surprising to see our minister for justice have such a twisted view of his remit.
I am not sure I agree with the above opinion Cian.
Effectively reviewing the rather antiquated rules of evidence is overdue. The most recent reforms have been process oriented and based on Criminal Case Law, I am thinking specifically of the Braddish and Dunne cases [Hardiman, J.] where CCTV evidence was lost in the process of trial.
The O’Brien rule where any evidence in violation of constitutional right’s being inadmissible is also gravely problematic.
The right to silence and inadmission of prior criminal indictments in my view are disparate and both are in need of reform.
I’d have certain sympathy given the Barr Tribunal Report and other various reports where oppressive questioning is concerned. The police have overstepped the mark in some instances. Though it is easy to claim oppressive questioning, another issue.
As a prosecutor in front of a jury I believe adoption of the UK and other jurisdiction’s admission of prior offences should be allowed.
Don’t forget McDowell for his faults does know much of this proposed review and reform from practice.
I am so relieved to read Jack M’s piece above from the perspective that there is a wish for change coming from within the criminal courts, rather than from possibly lesser informed individuals, including myself. The laws of evidence gall me, as they stand. Constitutional rights seem reserved solely for the accused person but they are for all citizens including the right of the victim to vindication of his rights. There is no proportionality, or reason at all in a justice system which would vehemently protect, for instance a rapist, murderer or child rapist’s previous evil exploits and right to silence. We see such persons appear in our courts as pure as the driven snow. To expose the truth about them would be “prejudicial”(a euphemism for the truth). No wonder frustrated victims try to expose the truth by going beyond the limits of the victim impact report. Isnt it absurd that the victim does not have a right to freedom of expression, that is if they are still able to talk, but the accused has the right to silence? Then again, what rights has the victim at all in this system.
When all police interviews are mandatorily videotaped and only videoed confessions are admissible as evidence, the right to silence will no longer be necessary as any coercion for a confession by the police will be evident on the video. As it is the right to silence and many other laws of evidence are, effectively, an indirect further violation of the victim’s constitutional rights.
After all, wouldn’t any reasonable person will an ounce of humanity be willing to help the police in a serious case, where a victims life has been destroyed, possibly literally as well as metaphorically? What other inference could one possibly draw from a person who declines to help these victims and their families by clinging on to their right to silence.It may be legal, but utterly immoral and by the laws of natural humanity, it does not ring true.
Ali B