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Cite as: [1999] 4 IR 365, [1999] IESC 50, [2000] 1 ILRM 191

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The People (D.P.P.) v. Finnerty [1999] IESC 50; [1999] 4 IR 365; [2000] 1 ILRM 191 (17th June, 1999)

Appeal No. 331/98
Hamilton C.J
Denham J
Barrington J
Keane J
Murphy J



JUDGMENT of the court delivered the 17th day of June, 1999 by Keane, J. [Nem. Diss.]


1. At approximately 4 o’clock on a summer morning in 1998, a car being driven by the applicant was stopped by the gardaí in Letterkenny, County Donegal. A young woman who was a passenger in the car got out of it immediately, walked quickly to the patrol car and spoke to one of the gardaí. She told him she had been raped by the driver. She was distressed, weeping


and shivering. The garda (Garda John Healy) told the applicant then and there what she had said and cautioned him in the usual terms. The applicant (whose reply was noted in writing by Garda Healy) said:-

“I didn‘t rape her. I met this girl at a disco. She came out willingly. We went down the road, pulled in, kissed and such. We left then and came back in.

The applicant was arrested and brought to the garda station in Letterkenny. He was there detained under the provisions of the Criminal Justice Act 1984 (hereafter “the 1984 Act”) and released at 4 pm on the 1st June, the period of detention having been duly extended. During that time, after having been properly cautioned and advised of his rights (including his right to consult a solicitor, of which he availed), the applicant was interviewed by the gardaí but made no further statement of any sort.

The applicant was subsequently returned for trial in the Central Criminal Court on two counts of rape. (The reason two counts were laid will become apparent at a later point.) Having been arraigned and having pleaded not guilty to both counts, the applicant was tried before Carney J and a jury in the Central Criminal Court.


The complainant, who was a student at a local regional technical college at the time, gave evidence of having gone out for a celebration with some of the other students on the 30th May, after they had finished their examinations on that day. She met a man in the disco to which they went with whom she danced and to whom she talked for most of the evening. She said that he offered to drive her home and, that, since he seemed nice and she thought she could trust him, she agreed. When they came to his car, he said that he had to wait for a friend: the friend, who was another man wearing a form of jumper with a hood which, the complainant said, he pulled over his head, sat in the back seat behind her as they drove off. She said that she became very frightened because the passenger in the back seat began making physical advances to her and that her fear became even greater when the driver, instead of taking her home, drove her to a lonely spot on the Derry road. There, she said, the two men got out and after a brief conversation, the passenger with the hood got back into the car and said that he would drive the complainant home. The other man, she said, just walked off.

The complainant said that the man with the hood, despite her protests and threats to jump out of the car, brought her to another place where he drove the car into the driveway of a house and round to the back. Her evidence went on: (Transcript, Book 1, Q.23 1):-


Q. The car drove in. Are you saying it stopped?

A. Yes, it stopped and before I knew it, the car just stopped and it happened so quickly that he was on top of me and he just reefed off my clothes.

The complainant went on to give a description of having been brutally raped by the driver. At one stage, she pleaded to be allowed to get out of the car to relieve herself: he eventually allowed her to but stood beside her. Following that incident, she said she was raped again in the same manner. (It was this sequence of events as narrated by the complainant which resulted in the laying of two separate counts.)

The complainant, who said that she was a virgin at the time of the alleged rape, identified the applicant as the perpetrator.

The complainant was then cross-examined on behalf of the applicant and it was put to her that her account in every material particular was false. She was told that the applicant would give evidence that they had in fact met in a pub where the complainant had gone with her friends before they went to the disco. The complainant, in her direct evidence had said that she and her friends had begun the evening in the pub, but she denied that she had met the applicant there or, in deed, at any time until after she had left the disco. She was told that


the applicant would say that she told him she was going on to the disco, that they met there and had drinks together and that at one stage he sat on her knee. She was told that he would say that they had a discussion as to what might happen later on, that she explained that they could not go to her place because her mother was sharing a room with her in a guesthouse and that ultimately they decided to go for a drive in his car. It was further put to her that he would say that she made some physical advances to him while they were driving and that ultimately he stopped the car and that they had intercourse with her consent. All of this was denied by the complainant.

When the complainant had finished her evidence, prosecuting counsel told the learned trial judge, in the absence of the jury, that he now proposed to adduce evidence as to the fact that the applicant, during the period of his detention in the garda station under the 1984 Act, had made no statement of any sort. This was objected to by counsel on behalf of the applicant on the ground that the only issue in the case was as to whether the sexual intercourse which had admittedly taken place on the evening in question between the complainant and the applicant was with or without her consent. Counsel for the prosecution, however, submitted that, since it had been made clear on behalf of the applicant that he would be giving evidence which would contradict the account of events given by the complainant, the fact that he had given no such account when being interviewed in the garda station would be relevant when


the jury came to assess his credibility. The learned trial judge, having heard the submissions on behalf of the prosecution and the applicant, ruled that the evidence was admissible.

The applicant gave evidence which was broadly similar to the account of events put on his behalf by counsel to the complainant. The only material addition in his evidence, which did not appear to have been put to the complainant, was that she expressed anxiety when the car was about to be stopped by the gardai, because her mother would be angry with her for having gone out drinking with the other students.

The applicant was cross-examined by prosecuting counsel as to what transpired in the garda station as follows (Transcript, Vol. 4, Q 310 et seq ):-

“Q. Now, you have told the members of the jury and his lordship what response you made to Garda Healy when he challenged you about the allegation made against you, isn‘t that right?

A. That’s correct, yes.

Q. Now, do you recall being in custody for 12 hours?

A. That’s correct, my Lord, yes.


Q. Yes, and weren‘t several members of gardaí enquiring further into this allegation made by [the complainant]?

A. That ‘s correct, my Lord yes.

Q. Yes, cautioning you and asking you questions about it?

A. That’s correct, my Lord.

Q. Yes. Are they correct in saying that you didn‘t give a single answer to any questions posed to you about this matter, the complaint from [the complainant]?

A. I explained to the guards, when I got stopped that I met [the complainant] in the disco].

Q. Yes. About what? About two lines or thereabouts. We have had it already...

Now, you had told them what you are now telling the members of the jury, wouldn‘t you have told them well over a page of facts


concerning this evening in which you were blissfully innocent of any wrongdoing?

A. Well, when I got to the police station, in Letterkenny, some of the guards passed remarks.

The applicant went on to say that during the course of the interview, some of the interviewing gardaí had said that the reason he had done what he was alleged to have done was because his parents had abused him when he was small. The applicant also said that he had given an account of what had happened to a lady garda in the interview room. It was put to him that none of the garda witnesses had been cross-examined to that effect. In re-examination he said that he had told his solicitors to make a complaint that he had been assaulted by one of the gardaí.

In the course of his charge to the jury, the learned trial judge made no reference to the issue raised by the prosecution as to whether the jury were entitled to take into account, in assessing the credibility of the applicant’s evidence, the unchallenged evidence of the garden that he had made no statement during the course of the detention. He did, however, refer to the applicant’s version in evidence as to what had transpired in the garda station in the following passage:-


“That was the evidence, members of the jury. In relation to this latter part, it wasn‘t put to any policeman that he was assaulted it wasn’t put to [the lady Garda] that she was seeing him on his own and failing to record material which he said which would be grossly improper, and it wasn‘t put to any one that they had said very improper things to him about his parents sexually abusing him and so forth. If allegations are going to be made against people, the procedures of the courts require that the matter be put to them so that they are given an opportunity to respond to it.”

2. The learned trial judge had, at an earlier point in the charge, referred as follows to that part of the applicant’s evidence:

“Now, there are certain legal, technical matters involved in a case where the evidence is directed to me rather than to you. There are certain circumstances where I have to decide that a person is in lawful detention and those decisions are for me to take and the evidence in that area is directed at me. So most of the admissions which are made here are matters which are directed at me rather than you but they do assume a certain significance because of evidence given in the very tail end of the case, I think to the


surprise of Mr. Finnerty’s legal advisers, but the admissions which were made at the time are the following:-

Joseph Finnerty was properly detained when he was being arrested under s. 4 of the Criminal Justice Act 1984.

“Now, members of the jury, a prisoner is not being properly detained if he is beaten and a prisoner is not being properly detained if interrogation techniques such as your parents sexually abused you’ are being directed at him. So at this point in the case there is a admission that Joseph Finnerty was properly detained when he was arrested under s.4 of the Criminal Justice Act, 1984.”

3. Junior counsel for the applicant, Mr. Grehan, made the following application in respect of these passages in the charge:-

“The next and final matter which I am addressing your lordship on, I don’t think is remediable by your lordship‘s simply recharging the jury.


Mr. Justice Carney: You want me to discharge the jury?

Mr. Grehan: I am going to ask your lordship to discharge the jury in respect that your lordship told the jury that in relation to evidence which Mr. Finnerty gave on cross-examination, that it came as a surprise to Mr. Finnerty’s legal advisers, that it was made at one minute to midnight, that there were allegations of various matters that had never been put to police officers and in the context of certain statements of fact having been admitted by the defence at an earlier stage.

This case, my lord is about a rape allegation. It is not about whether Mr. Finnerty was assaulted at some stage by Garda John Healy in the course of his custody. There was no question whatsoever that the defence could have been taken by any surprise that Mr. Finnerty, when he was being cross-examined should give that evidence. It is set out clearly in the book of evidence in Garda John Rousse‘s statement that Mr. Dillon [the applicant ‘s solicitor] made a complaint of assault against Garda John Healy at 9.30 am on the morning of his detention. It’s set out clearly in the custody record but your lordship has given to the jury the suggestion that


this was something that came clearly out of the blue that the defence were never previously made aware of it and the only possible implication is that Mr. Finnerty made it up in the witness-box and he lied not only to the jury but also to his defence in this case.

Mr. Justice Carney: well, I have not read the Book of Evidence, Mr. Grehan, and I am conducting a trial on evidence being adduced here. If you want me to tell the jury that that was in the Book of Evidence very well, but it is a remarkable course of events for the defence to spring matters at one minute to midnight - I do not retreat from that phrase for a moment - when they had not been put to any of the prosecution witnesses.”

4. Mr. Grehan, in a further submission to the learned trial judge said:-

“At an earlier point in this trial, your lordship made a ruling, which is novel to me in my relatively limited experience of criminal experience compared to your lordship, which in effect abolished an accused’s right of silence and to exercise that right in the police station by determining that, not only can the fact that the

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accused has exercised that right be brought to the attention of the jury, the fact that he refused to answer any questions can be brought to the attention of the jury and Mr. Mills in fact can cross-examine the accused as to what exactly occurred in the context of his detention in the station... In the normal course if this case had proceeded on the basis that Mr. Finnerty had simply exercised his right to silence or simply that nothing had occurred which was of probative value while he was in custody, none of these matters would have been gone into or would have come out and that is the only manner in which they have come out... This is a matter which only came out in the context of cross-examination and can now specifically, because of a ruling which your lordship made to the effect that his right to silence could now be undermined by the fact that it could be commented upon and that he could be questioned on it and in those circumstances it seems to me that your lordship has wholly undermined the defence of Mr. Finnerty in this case.”

5. Having heard counsel for the prosecution in reply, the learned trial judge recalled the jury and recharged them in respect of the other matters as to which requisitions had been made. He made no further reference to this matter,


presumably because he did not consider it appropriate to discharge the jury and Mr. Grehan had made it clear that this was the only course he was inviting the trial judge to take.

6. As to the other evidence at the trial, it is sufficient to refer to those aspects which had a bearing on whether there was any evidence which the jury might have treated as corroborative of the complainant’s version of events.

7. The complainant was medically examined by Dr. Najma Ali, a registrar in Letterkenny Hospital. She said that the complainant seemed distressed but did not appear to have any external injuries. As to her examination of the genitalia, it can be summarised as indicating that what she found was consistent with forced sexual intercourse, but was also consistent with consensual sexual intercourse. She said that the complainant’s clothes were dishevelled but were not torn, the latter conclusion being borne out by the forensic examination of the gardaí. It should be pointed out that, while Dr. Ali found no sign of bruising, she agreed that it might have taken a day or more after the application of any force for such bruising to appear.

8. There were also blood stains on the underwear and on the seat of the car which, the forensic evidence, indicated would be consistent with either forcible or consensual intercourse.

9. The learned trial judge, in the course of his charge, warned the jury of the danger of convicting the applicant in the absence of corroboration but also told


them that, having carefully considered that warning, they were entitled so to convict. He also drew their attention to those aspects of the evidence which were capable of constituting corroboration, i.e. the complainant’s distress and confusion and her dishevelled appearance in the immediate aftermath of the alleged rape. He also was at pains, at the request of the defence, to point out to the jury that those matters were also consistent with consensual sex having taken place. No criticism has been, or could be, made of those aspects of his charge.

10. The jury found the applicant guilty in respect of the second count by a unanimous verdict. They were unable to agree in respect of a verdict on the first count. The case having been put back for a number of weeks for the obtaining of the appropriate reports, the applicant was sentenced to a term of 7 years’ imprisonment. The first count was adjourned so as to enable counsel for the prosecution to obtain instructions from the Director of Public Prosecutions as to whether to proceed with that charge again. An application for leave to appeal was refused.

The Court of Criminal Appeal

11. An appeal was brought from the refusal by the learned trial judge to grant leave to appeal. While the notice of appeal was not included in the books of


appeal lodged with this court, it can be inferred that the first two grounds were as follows:-

1. That the learned trial judge erred in law and in fact in permitting the prosecutor to adduce evidence before the jury of a positive nature to the effect that the accused had refused to answer any questions put to him by members of An Garda Sííochána during his entire period of detention under s.4 of the Criminal Justice Act 1984.”

2. The learned trial judge erred in law and in fact in permitting the prosecutor to question the accused before the jury as to why he refused to answer any questions during his entire period of detention under s.4 of the Criminal Justice Act 1984.”

12. Other grounds were also argued in the Court of Criminal Appeal, but were not pursued in this court. The appeal was dismissed in an extemporary judgment of the court given by Lynch J. dealing with the first two grounds of appeal, the learned judge said:-


“The applicant claims that that permission to give that evidence of his silence and to cross-examine him about the silence was in breach of his right to silence. Now his right to silence was emphasised by the learned trial judge and the only purpose of this evidence and cross-examination by the prosecution of the Applicant related to the reliability of the Applicant’s detailed statement of explanation. There were before the jury manifestly two contradictory versions of what had happened on this particular night. The issue was which of these versions was to be believed and it was quite proper and reasonable for the prosecution to ask the Applicant why he had not given the full exculpatory account of the evening’s events at an early stage instead of for the first time during the course of the trial.

This course of events does not trench in any way on the right to silence which as I have said was emphasised very strongly by the learned trial Judge but this form of evidence of the Applicant’s silence in the garda station and of cross-examination by the prosecution was highly relevant to the credibility of the Applicant’s lately proffered account of events. The evidence as to his silence and his cross-examination about the silence were

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permitted and adduced only for that purpose and that was made quite clear and in the circumstances of the case that course of proceedings was perfectly permissible and proper.

“In these circumstances the court rejects grounds 1 and 2 of the application for leave to appeal.”

13. It should be said at this point that the reference in this passage to the trial judge having emphasised the right to silence of the applicant appears to be an oversight, if it was intended as a reference to the applicant’s claimed right to remain silent during the period of his detention in the garda station. There is no reference in the charge of the learned trial judge to that right of the applicant: the learned trial judge did undoubtedly point out to the jury that the applicant was under no obligation to give evidence in his own defence, but that is a different matter.

14. Following the dismissal of the appeal, the applicant applied for a certificate pursuant to s.29 of the Courts of Justice Act 1924 enabling an appeal to be brought to this court. That application was acceded to by the court of Criminal Appeal, the certificate being in the following terms:-

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“The court certifies that its decision of the 22nd June 1998 involves a point of law of exceptional public importance which is set out in the Schedule hereto and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.


Counsel for the applicant in cross-examining the complainant put to her a detailed account of the events of the night of the 31st May/1st June 1995 in which he alleged that everything that happened on that night, including a journey in a motor car and sexual intercourse, happened with the full and free consent of the complainant. The only statement made by the applicant to members of the Garda Síochána was at the roadside when he was stopped between 4 and 5 am on the 1st June 1995 and was accused of rape by the complainant, which statement was as follows: -

“I didn‘t rape her. I met this girl at a disco. She came out willingly. We went out the road pulled in, kissed and such. We left then and came back.

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In the foregoing circumstances, was it permissible for the prosecution:

1. To elicit from members of the Garda Síochána who interviewed the applicant during his twelve hours’ detention in the garda station on 1st June 1995 that he declined to say anything during such interviews in relation to the complainant’s accusations?

2. To cross-examine the applicant when he gave detailed evidence as to alleged consent by the complainant to everything that happened on the night in question as to why he did not give that account of events when interviewed by members of the Garda Síochána during his twelve hours’ detention in the garda station on the 1st June 1996?”

15. The notice of appeal to this court, pursuant to that certificate, in addition to the two grounds set out at p.16 above, contained the following additional grounds: -

“3. That the learned trial judge erred in law and in fact in failing to discharge the jury upon the requisition of counsel for the accused at the conclusion of his charge to the jury on the basis


that part of the said charge which related to the evidence given by the accused was speculative and prejudicial to the accused and served to totally undermine and belittle the accused before the jury;

4. The learned trial judge erred in law and in fact in failing to hold the balance and remain impartial vis a vis the prosecutor and the accused in his charge to the jury;

5. That the learned trial judge in recharging the jury failed to do so in an impartial and balanced manner and in fact thereby undermined the requisitions made on behalf of the accused.”

The right to silence

16. It is important to emphasise at the outset that the more general constitutional and legal dimensions of what has come to be called “the right of silence” are not at issue in this appeal. That right, to the extent that it exists, can arise in a number of different contexts, only one of which is at issue here. Thus, it is not in dispute that the exercise by an accused person of his right not to give evidence in his own defence cannot lead to any inference adverse to him

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being drawn by the court and that, in the case of a trial by jury, the jury must be expressly so advised by the trial judge.

17. Nor is the appeal concerned with the possible admissibility in evidence of a statement made in the presence of a defendant accusing him of a crime, upon an occasion which may be expected reasonably to call for some explanation or denial from him. Such a statement, although not evidence against him of the facts stated, may be accepted by him by word or conduct, action or demeanour and it is then the function of the jury which tries the case to determine whether it was accepted by him in whole or in part: (see Archbold on Criminal Pleading, Evidence and Practice, 1999 edition, 15 - 390 ). Nor are we concerned with the different considerations which may arise where the accused denies the charge and the adduction of that evidence, given its extremely limited probative value, may, at least in some circumstances, compromise the fairness of the subsequent trial. For that reason, it has been the law both in England and Ireland since the leading case of R. v. Christie [1914] AC 545 , that a trial judge should in most cases take care to ensure that such evidence is excluded where it has little or no evidential value. In the present case, that issue does not arise since the adduction in evidence of the exculpatory statement made by the applicant to Garda Healy when he was stopped by the gardai was not objected to on his behalf.

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18. Nor is this case concerned with the formal evidence routinely given in many cases as to the response by an accused person following his being charged and cautioned. Such evidence is normally led as one of the formal proofs in the prosecution’s case because, it is thought, rightly or wrongly, that evidence must be given of the accused having been charged and it would be unwise to allow the jury to speculate as to what he might have said in response. Except in cases where his response was inculpatory, such evidence is normally innocuous and will almost certainly have long faded from the jury’s minds when they retire to consider their verdict.

19. This case is solely concerned with the claimed right of a person detained under s.4 of the 1984 Act to refuse to answer questions put to him by the gardai during the course of his detention and the corollary of that right i.e. the need to ensure that no inferences adverse to him are drawn at any subsequent trial from the exercise of that right.

20. The history of the law prior to the enactment of the 1984 Act is relevant. Our criminal law, deriving ultimately from the Anglo-American system, historically reflected a tension between two competing principles. The first was the right and duty of the police to investigate crime of every sort in the interests of the community as a whole and the corresponding obligation on citizens to assist them in that task. The second was the right of a suspect at a defined stage in the investigation to refuse to answer any questions and the

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obligation on the police to inform him of that right in the almost universally known formula of the traditional police caution.

21. These principles were eventually enshrined in what became known as the “Judges’ Rules” set out in R. v. Voisin [1918] 1 KB 531 at 538. Those rules were intended solely as guidance for police officers in the conduct of investigation and were not rules of law. However, where admissions, alleged to have been made by an accused person, were made or obtained in circumstances which were in contravention of the rules, the trial judge had a judicial discretion to admit or not to admit the admissions in question, provided that he was satisfied that they were voluntary. If they were not voluntary, he was required to exclude them. (On this topic generally, see the decisions of this court in McCarrick v. Leavy [1964] IR 225 and The People (Attorney General) v.Cummins [1972] IR 312.) In the context of this case, the relevant rules are as follows:-

“2. Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or any further questions as the case may be.


3. Persons in custody should not be questioned without the usual caution being first administered....
5. The caution to be administered to a prisoner when he is formally charged should therefore be in the following words:

‘Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.

The common law also proceeded on the basis that the police had no right to detain a person whom they suspected of having committed a crime for the purpose of questioning him. Their only right was to arrest him and bring him before the appropriate court, there to be charged, as soon as practicable. Since, however, many people were unaware of their rights in this context and were not normally reminded of them, the practice, euphemistically described as “assisting the police with their enquiries”, mutated into what was, in practice if

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not in theory, a form of unlawful detention. (See Duane v. Clinton [1930] IR 366 ; The People (DPP) v. O’Loughlin [1979] IR 85.)

Prior to the 1984 Act, one major abridgement of the citizen’s rights in this regard had been effected in the form of the Offences Against the State Acts, 1939 - 1972. While the provisions of that legislation were intended to afford the gardai specific powers in cases where the security of the State was threatened, they were routinely applied in cases of what came to be described as “ordinary crime”. Thus, a person who broke into a house and murdered the occupant could not be detained for questioning on the ground that he was suspected of having committed the murder; he could, however, be detained because he was suspected of having committed an act of malicious damage.

It was against this background that the 1984 Act was enacted. The policy of the legislation is clear: to end the dubious practice of bringing people to the station for the purpose of “assisting the gardaí with their enquiries”, or in purported reliance on the legislation directed primarily at subversive crime, and to substitute therefor an express statutory regime under which the gardaí would have the right to detain a person in custody for a specified period of six hours which could be extended for a further six hours for the purpose of investigating specified crimes. That included the right to question him concerning the crime, but the significant abridgement of the suspected person’s rights at common law was balanced by the provision of express safeguards. As elaborated in the rules

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elaborated in the rules made on foot of the legislation, these included obligations on the gardaí, to keep detailed records as to the custody of the suspect and provisions designed to ensure that the questioning did not become unfairly oppressive. (See Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochána Stations) Regulations (S.I. No. 119 of 1987).

Section 5(1) of the 1984 Act requires the member in charge of the station to inform a person without delay of his right to consult a solicitor and to have that solicitor and another person named by the detainee notified of his detention and the station in which he is being detained. While there is no express requirement in the Act or the rules that the caution in the usual form must also be administered before a person is questioned, it is quite clear that it should be given and, indeed, was given in the present case. The law was stated in this court by Walsh J, in a passage subsequently approved of by Finlay CJ giving the judgment of the court in The People (Director of Public Prosecutions) v. Quilligan No. (3) [1993] 2 IR 305, as follows:-

“ .... whilst s. 30 and 52 [of the Offences Against the State Act, 1939] respectively are the only sections which enable the civic guards to require particular answers from an arrested person and to that extent give rise to the only statutory rights of interrogation

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as such conferred by the Act, nonetheless the person arrested and detained in custody in a Garda station for the specified statutory periods, as in the cases of arrest for ‘ordinary’ offences, may be asked any other question by members of the Garda Síochána present, but he is under no obligation to answer any of them and he should be so told. It is to be borne in mind that the Judges’ Rules apply in respect of all person detained under s.3 0...”

(The People (Director of Public Prosecutions) v. Quilligan [1986] IR 495)

22. It is clear that the same considerations apply to persons detained under s.4 of the 1984 Act.

23. The 1984 Act, accordingly, did not modify in any way the right of a person whom the gardaí suspect of having committed a crime to refuse to answer questions put to him by the gardaí and his entitlement under the Judges’ Rules to be reminded of that right before any questioning begins. That right would, of course, be significantly eroded if at the subsequent trial of the person concerned the jury could be invited to draw inferences adverse to him from his failure to reply to those questions and, specifically, to his failure to give the questioning gardai an account similar to that subsequently given by him in

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evidence. It would also render virtually meaningless the caution required to be given to him under the Judges’ Rules.

24. It must also be borne in mind that it is a usual practice for solicitors to advise their clients while they are in custody not to answer any questions put to them by the gardaí, if they consider that it would not be in their interests to do so. However, if the jury could be invited to draw inferences from the failure to reply to such questions, the result would be that persons in custody would have to be advised by solicitors that, notwithstanding the terms of the caution, it might be inimical to their client’s interests not to make a full statement to the gardaí, thereby eroding further the right of silence recognised at common law.

25. Had the Oireachtas intended to abridge the right of silence in this manner, it would have expressly so legislated. Sections 18 and 19 of the 1984 Act enable the court of trial to draw inferences from the failure or refusal of a person arrested by the gardaí to account for the presence of certain objects in his possession or his having been found at a particular place. Such inferences may afford corroboration of any evidence, but the person may not be convicted of an offence solely on the basis of such inferences. This leads to the inevitable conclusion that no such general abridgement of the right of silence was intended to be effected where a person declined to answer questions put to him by the gardai during the course of such a detention.


26. It is also noteworthy that such an alteration in the law was effected, in England, in circumstances of acute controversy, by s.34 of the Criminal Justice and Public Order Act 1994, which provides inter alia that, where a person, on being questioned under caution by an investigating police officer, fails to mention any fact relied on in his defence in the proceedings, the court or jury:-

“May draw such inferences from the failure as appears proper”.

27. That in turn led to an amendment in that Act of the traditional form of caution which, as set out in Code C, para. 10.4, is now as follows:-

“You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”

28. The absence of any such provisions in the 1984 Act speaks for itself. In the case of the Offences Against the State Act 1939, the right of silence was modified in so far as s.52 of that Act made a failure to account for one’s movements, when requested to do so under that Act, a punishable offence. In Heaney v. Ireland, [1994] 3 IR 593 , Costello J, as he then was, concluded that the right of silence modified by this provision was a


constitutional right deriving from Article 38.1 of the Constitution guaranteeing that no person would be tried on any criminal charge “save in due course of law”. He held, however, that the abridgement of the right of silence effected by s.52 was proportionate to the objectives intended to be achieved by the legislation. He, accordingly, rejected the challenge to the constitutionality of the provision and his decision was upheld by this court, although in the judgment of O’Flaherty J the constitutional right to remain silent is traced to a different source, i.e. as being a corollary to the freedom of expression also recognised by the Constitution. The same principles were applied by this court in Rock v. Ireland [1998] 2 ILRM 35 where the constitutionality of s.s. 18 and 19 of the 1984 Act were upheld. (See also the decision of Barrington J, speaking for the court, in In re National Irish Bank Limited (Under Investigation) and The Companies Act 1990 [1999] 1 ILRM 321)

29. It follows that the right of suspects in custody to remain silent, recognised by the common law, is also a constitutional right and the provisions of the 1984 Act must be construed accordingly. Absent any express statutory provisions entitling a court or jury to draw inferences from such silence, the conclusion follows inevitably that the right is left unaffected by the 1984 Act save in cases coming within s.s. 18 and 19, and must be upheld by the courts.

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30. Mr. Grehan, who argued this case on behalf of the applicant with conspicuous ability, accepted that he would have had no complaint if the prosecution had simply informed the court that the applicant had been detained under the 1984 Act but that nothing of probative value had emerged from the detention. He urged, however, that that was not what had happened in this case: on the contrary, evidence was adduced by the prosecution to the jury as to what transpired during the detention, after the complainant had been cross-examined, with the avowed intention of cross-examining the applicant as to his failure to give such an account during the course of his detention when he came to give evidence, a course of action strenuously objected to on behalf of the defence but permitted by the learned trial judge.

31. Again, while Mr. Grehan accepted that he had not objected to the cross-examination when it eventually took place, he also pointed out that at that stage the trial judge had already made his ruling on the matter and that, in any event, the damage was done so far as the defence was concerned once the cross-examination on this topic was under way. While also accepting that it was open to him at that stage to apply to the trial judge to discharge the jury, he submitted that this was a dubious course for the defence to adopt in a case where the jury had been presented with two diametrically opposed versions of what had happened on that evening between the complainant and the applicant


and the defence might justifiably have hoped that the jury would be left with a reasonable doubt as to whether the complainant’s version was true.

32. The court is satisfied that Mr. Grehan’s submissions are well founded. The defence should not have been put at any disadvantage on the hearing of the appeal by the decision, reasonable in all the circumstances, not to object to the cross-examination or apply for the discharge of the jury.

33. The principles applicable in a case such as the present where a defendant while detained under the provisions of the 1984 Act has refused to answer questions put to him can be stated as follows:-

(1) Where nothing of probative value has emerged as a result of such a detention but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained but that nothing of probative value emerged.

(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant during the course of his detention to answer any questions be permitted.


(3) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.

34. The application of the first and second of these principles to the present case must result in the appeal being allowed. Unfortunately, the difficulties were compounded by the passage in the trial judge’s charge which was by implication critical of the appellant for having made statements as to what transpired during the course of his detention which had not been put to the gardaí and which, the trial judge invited the jury to infer, had not been transmitted to his legal advisers.

35. It must be said, in fairness to the trial judge, that, once the misapprehension he was under when making those observations was made clear to him, he might have been prepared to rectify the matter when the jury was recalled. The defence, however, adopted the position, as they were entitled to do, that the matter was beyond rectification and sought the discharge of the jury, a course opposed by the prosecution which the trial judge did not adopt. The jury, accordingly, in deliberating on the guilt or innocence of the accused, might well have been under the impression that they were not only entitled to draw adverse inferences from the failure of the defendant to give his version of events in detail in the garda station but that they were also entitled to draw such

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inferences from the supposed failure of the applicant to instruct his legal advisers as to what had transpired during the course of that questioning.

36. Any inferences which the jury might have drawn to that effect would have been in direct violation of the applicant’s constitutionally guaranteed right to remain silent, and might well have been a factor in the jury’s assessment of the credibility of the applicant’s account of what happened between him and the complainant on that night. The verdict of the jury cannot, accordingly, in those circumstances be regarded as safe or satisfactory.

37. The appeal will be allowed and in place of the order of the Court of Criminal Appeal there will be an order reversing the conviction and directing that the applicant be retried in respect of count number 2.

© 1999 Irish Supreme Court

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