Ireland: Curtailment of the right to silence through statutory adverse inferences

Abstract

In Ireland, the right to silence has been significantly impacted by the legislative introduction of adverse inference provisions. In specified circumstances, with varying threshold requirements, a suspect’s failure to answer questions or provide information during Garda (police) questioning can form the basis of an inference against them at trial. Ireland has not opted in to either Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence or Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. This article examines the constitutional and common law context of the protection of the right to silence in Ireland; the operation, and expansion, of the statutory inference regime; the lack of legislative provision for a right to legal assistance during Garda interview; and relevant European Court of Human Rights jurisprudence. While there are some benefits to overt legislation and safeguards attached to the drawing of inferences from pre-trial silence, the question must be asked whether a detained suspect in Ireland truly has a protected right to silence in real terms, given the proliferation of inference provisions.