The Gazette 1992

GAZETTE

JANUARY/FEBRUARY 1992

to almost all serious crime. Mr.

Barnes rightly pointed out that

some crimes in the fraud area such

as conspiracy to defraud and

falsification of accounts were not

caught by the Section. The reason

such crimes are not caught is

en t i r e ly

h i s t o r i cal

and

t he

draughtsmen of the 1984 Act

obviously did not realise that these

crimes were being excluded from

the ambit of the Act. A simple

amendment to the Act would solve

the problem. Mr. Barnes made

much of the fact that because of

this loophole many "sophisticated

upmarket criminals" have escaped

the rigour of the law. If this is so

and he provided no evidence that

it is, it is a loophole that can be

easily closed without interfering

with the right to silence. Similarly,

Mr. Barnes stated that essential

powers of the police such as

powers of entry, search and seizure

are even more restricted and are

often non existent. This is news

to me but, if it is so, surely it

would be more appropriate to

recommend how they could be

updated rather than attacking the

right to silence.

Protection of suspects

Mr. Barnes concedes that any

dilution of the right to silence would

require the introduction of safe-

guards for the p r o t ec t i on of

suspects. I believe that he is being

sincere about this but some of the

safeguards mentioned by him, such

as audio and video taping of inter-

views, have been recommended as

far back as 1972 in the UK (cf

Criminal Law Revision Committee

Eleventh Report) and in 1978 in

Ireland by the O'Briain Committee.

Indeed similar recommendations

were again made in 1990 by the

Martin Committee. To date nothing

has been done about them here.

The Regulations for the Treatment

of Persons in Custody in Garda

Siochana Stations (S.I. 119/1987)

have had, insofar as they go, a

beneficial influence from both the

prosecution and defence per-

spective but they do not provide for

electronic recording of interviews.

The other recommendation made

by Mr. Barnes that a judicial figure

might oversee interrogations would

certainly be a welcome develop-

ment but whether it would work in

practice is open to doubt. The

Criminal Law Revision Committee

in the UK were of the view that

such a system would be unwork-

able. However, it must be admitted

that if adequate safeguards were

implemented and certainly if they

extended to a right of a suspect to

have either a judicial figure or

indeed even his solicitor present

throughout all interviews one of the

main arguments against abolishing

the right to silence wou ld

disappear.

Investigate scene of the

crime

The kernel of the problem lies in

differing perspectives as to how

Gardai should conduct investiga-

tions. There is no doubt that the

vast majority of Garda investiga-

tions are based on the desire to

have a suspect confess his guilt.

The main thrust of the investigation

is therefore to arrest a likely

suspect, interview him in the Garda

station away from his family,

friends and other supports and to

obtain a confession. Obviously the

right to silence can be a huge

hindrance to such an investigation.

My argument is that it would be

preferable for all to move the locus

of the Garda investigation out of

the interview room in the police

station and start with the scene of

the crime. This would require

increased reliance on forensic

testing and proper detective work.

In making this suggestion I am only

echoing the remarks made by the

O'Briain Committee at page 14

when they stated that the ex-

tremely high percentage of serious

crime solved by confessions...

"seems to indicate a high degree of

reliance on self incrimination, and

an inability or reluctance to secure

evidence by scientific investigation

and

persevering

police

enquiries". I believe that many

Gardai would prefer this new

approach. There is no doubt that

confessions have been obtained by

illegal and unconstitutional means

in the past and that innocent

people have been convicted. Mr.

Barnes recognises this. These

cases must be seen as open

wounds on the system of justice.

Furthermore, even when the Gardai

act in a proper manner allegations

of impropriety may be made

against t hem by an accused

attempting to have a confession set

aside. A large amount of criticism

directed at Gardai stems from this

over-reliance on confession. If

alternative means of investigating

crime are not developed a great

many Gardai will take the easy way

out and rely on confessions. Surely

pushing up the "crimes solved"

statistics by interviewing a drug

addict who will admit to anything

in order to get bail cannot be good

for the morale of the force.

Presence of lawyer during

questioning

Mr.

Barnes

refers

the

"sophisticated upmarket criminal".

This creature is also mentioned by

the Criminal Law Revision Com-

mittee who refer to them as

"sophisticated professional crimi-

nals". Their argument is that these

persons know their legal rights very

well and use the right to silence to

avoid conviction or even charge.

The vast majority of suspects are

however poor, badly educated and

not properly equipped to deal with

the huge trauma associated with

being in a police station. The Martin

Committee set out at page 32

what it must be like to be deprived

of personal liberty in a Garda

station. " I n particular, where the

person being interviewed is young

"If adequate safeguards

were implemented

and certainly

they extended

to a right of a suspect to have either a judicial

figure or indeed even his solicitor present throughout

all

interviews

one of the main arguments

against abolishing

the

right to silence would

disappear."