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GAZETTE
JANUARY/FEBRUARY 1992
or of limited education or powers of
expression, the isolation f r om
friends and the strange surround-
ings coupled with the loss of liberty
can readily tilt the balance of
fairness against him. To cope w i th
persistent questioning requires
exceptional faculties. The dominant
matter in the mind of such a person
must be to regain freedom as soon
as possible, w i t h a s t r ong
temptation to say or sign whatever
it is felt will achieve speedy release.
This temptation becomes com-
pelling where the suspect may be
suffering from drug withdrawal
symptoms". Mr. Barnes claims that
the fact that such a person has a
right of immediate access to a
lawyer countervails these pres-
sures. This right is indeed an
i mp o r t a nt
one
( t hough
t he
Government does not regard it as
being so important as to undertake
to pay solicitors under the Legal Aid
System for attendances at Garda
stations) but the solicitor is not as
yet entitled to remain w i th the
suspect during questioning.
Erosion of right to silence
My main criticism of Mr. Barnes'
speech is that he neglects to
mention that to a large extent the
right to silence has already been
drastically interfered with. There is
a legal obligation on persons
arrested under Section 30 of the
Offences Against the State Act,
1939 to a c c o u nt for
t he ir
movements and if they fail to
comply w i th such a requisition
under Section 52 of the Act they
are liable to be charged and
sentenced to six months imprison-
men t. Secondly, the Criminal
Justice Act, 1984 criminalised a
failure to give information in re-
lation to fire-arms and ammunition
(S15) and stolen property (S16).
Furthermore an arrested person is
now obliged in certain circum-
stances to account for various
objects, substances or marks or
objects found near him and if he
fails to do so a judge or jury may
draw whatever inferences they
wish adverse to the accused (S.18).
Similar inferences may be drawn if
an accused person fails to comply
w i th a request to account for his
presence at a perticular place (s.19).
Desp i te t he huge c amp a i gn
launched by prosecution auth-
orities and Gardai seeking from the
Legislature such powers as those
contained in Sections 15, 16, 18
and 19 of the Criminal Justice Act,
1984 these Sections are rarely, if
ever, used. I have only once
encountered the use of Section 16
and have never come across the
use of Sections 15, 18 and 19.
Similarly, it is only recently that
persons have been charged for
failing to account for their move-
ments pursuant to a requisition
under Section 52. If the prosecu-
tion authorities really feel that the
right to silence is such an obstacle
t hey wo u ld do be t t er in my
submission to utilise the powers
they already have rather t han
seeking a further dilution of the
right to silence.
Coherent reform of
criminal law
There is no doubt that there are
deficiencies in both our substantive
criminal law and in our criminal
procedures. There is a need as Mr.
Barnes says for "reforming statutes
based on c ohe r ent
general
principles". Defence lawyers would
we l c ome reforms and indeed
members of the Criminal Law
Committee of the Incorporated Law
Society of Ireland are contributing
to different discussion papers of
the Law Reform Commission.
Mr. Barnes refers to the "B ig Lie"
underpinning the right to silence. I
would suggest that his judgment
has been clouded by a different
"B ig Lie" - that is that all of the
d i f f i c u l t i es
en c oun t e r ed
by
prosecution authorities emanate
from this dreaded right. I believe
t h a t r e f o rm of t he law and
procedures in other respects as
suggested by him together w i th
a change in the manner in which
crime is investigated with a greater
emphasis on forensic, detective
and intelligence work might be
the real answer to his problems.
•
Michael
Staines,
Solicitor
U.S. Opportunity
for Young Solicitor
Sixteen young business people
from all over Ireland will be given an
opportunity to work in the United
States for six months under a
scheme announced recently by the
International Fund for Ireland (the
sponsors) and Hay MSL Ireland
Management Consultants. There is
an opening in the programme for a
young solicitor to spend six months
in a firm of lawyers in New Jersey.
Any firm which would like to
sponsor one of its younger soli-
citors on this programme, or obtain
further details should contact
Damien Hand,
Hay Management
Consultants, New Mount House,
22 - 24 Lower Mount Street, Dublin
2. Telephone: 765994.
•
Denis C. Guerin
New York Attorney at Law
Native Killarney, County Kerry.
Legal Advice and Assistance on
Wills, Inheritances, Family
Searches, throughout the U.S.A.
Specialising in Immigration,
Personal Injury,
Property Transactions, Divorces,
Wills, etc.
25 West 39th Street
New York NY 10018
Telephone:
Days: 212-398-9238
Evenings: 212 - 796 - 0970
Fax: 212-391-6917
PCS
PETROCARGO MARINE SURVEYORS LTD.
Capt. Thomas C. Nash
M. INST. PET.
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