The Gazette 1980

GAZETTE

DECEMBER1980

OBSERVATIONS ON THE

VOLUNTARINESS TEST IN

IRISH LAW

by Paul O'Connor, B.C.L., LL.M., (N.U.I.), LL.M. (Penn),

Barrister-at-Law, Assistant Lecturer in Law, U.C.D.

1. Introduction

The basic principle to have emerged at common law

which determines when the inculpatory statements of an

accused are admissible in evidence is that such statements

be voluntarily obtained. This principle is embodied in the

classic statement of Lord Summer in

Ibrahim

The

King)

"It has long been established as a positive rule of

English criminal law, that no statement by an accused is

admissible in evidence against him unless it is shown by

the prosecution to have been a voluntary statement, in the

sense that it has not been obtained from him either by fear

of prejudice or hope of advantage exercised or held out by

a person in authority".

Before elaborating on the meaning of this prinicple in

the context of Irish law the implications attaching to

particular and distinct conceptions of the criterion of

voluntariness will be briefly examined.

One approach to the issue of voluntariness stresses that

inculpatory statements should not be obtained as the

result of oppression or by any threats or inducements held

out by persons in authority.

According to this approach

voluntariness depends primarily on the presence or

absence of any of these factors. In the absence of these

disqualifying factors a confession will be regarded as

prima facie voluntary. On the other hand there is an

approach which concentrates exclusively on whether a

confession was freely and voluntarily given. The "great

mistake", according to Lefroy C. J., has been to focus the

inquiry solely on whether there were any threats or

inducements.

The Chief Justice observed with respect to

a confession that it may " . . . be made under such

circumstances showing that it was not made under the

influence of any threat or inducement, and yet may not

have been made freely and voluntarily".

For example, an

accused may confess his guilt without having been

cautioned by the police that he need not say anything. In

such a situation there may not have been any

inducements. Yet, according to Lefroy C. J., failure to

issue a caution has the effect of rendering the confession

one which was not freely and voluntarily made.

A useful

comparison may be made between the voluntariness test

and an alternative test espoused by Dean Wigmore which

is based on the concept of trustworthiness. Here, the

underlying reason behind rejecting certain confessions in

evidence is based on the recognition that under certain

conditions people tend to falsely state that they are guilty

of acts of which they are in fact innocent.

Among the

most potent factors recognized by Wigmore in inducing

persons to falsely admit guilt are threats and promises.

Thus, according to this criterion, testimonial untrust-

worthiness, and not a principle of voluntariness unrelated

to the existence of threats and promises, constitutes the

basis for exclusion.

The distinction drawn above between the two species

of voluntariness test and the trustworthiness test is of

practical importance. However a fuller appreciation of the

practical implications of these distinctions will emerge

when the efficacy of the judically settled view of the

voluntariness test is considered in the context of the

values it purports to safeguard. It will suffice to say at this

stage that a 'pure' voluntariness test

is more favourable

to the position of the accused than either a

voluntarififiness test which is activated only by the

existence of specific factors like threats or inducements

and a trustworthiness test which presumably is not in any

way violated by the admission in evidence of involuntarily

obtained confessions as long as they are deemed not to

have been in any way untrustworthy.

2. Meaning of the Voluntariness Test in Irish Law

In discussing the prevailing judicial attitude in Ireland

to the reception of confessions in evidence one should

bear in mind the observation of Mr. Justice Kenny that

the "admission in evidence of incriminatory statements

has been the subject of numerous judgments and rulings

which are not easy to reconcile".

However, the following

judicial statements do support a coherent view of the

voluntariness test. O'Higgins, C. J. in

People (D.P.P.)

Afa<Wen

clarified his position on the requirement that the

statements of an accused must be voluntary by saying

that they must not be made "as a result of any

inducement or promise of advantage".

Earlier,

O'Byrne J. observed in

People (A.G.)

Murphy

that a

statement must be voluntary "in the sense that it has not

been obtained . . . by fear of prejudice or hope of

advantage exercised or held out by a person in

authority".

At the highest judicial level Walsh J.

remarked with respect to the role of the trial judge in

admitting the statement of an accused that "if he is

satisfied that it was not voluntary then his decision can

only be to exclude it".

A judge, in determining whether to admit the

statements of an accused in evidence, confronts two

essentially different issues. Mr. Justice Kenny in

People

(A.G.)

Galvin

stated that the first issue concerned the

standard inquiry into determining if a statement is

voluntary "in the sense that it has not been obtained from

an accused person either by fear of prejudice or hope of

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