The Gazette 1980

GAZETTE

DECEMBER1980

advantage exercised or held out by a person in

authority".

The second issue involves a judge deciding

whether to exercise his judicial discretion, after the above

inquiry has been made, to refuse to admit the statement in

evidence because it "was obtained under circumstances of

such pressure that it ceased to be one freely made".

This

approach, while recognizing a residual discretion on the

part of the trial judge to admit or reject statements in

evidence, is still primarily concerned with defining

voluntariness in the context of whether there are any

threats or inducements. Indeed, much of the case law on

the subject reflects this orientation.

One would have

thought that a statement, which was obtained under

circumstances of such pressure that it ceased to be one

freely made, was not voluntary. This apparent

contradiction can be explained on the basis that a

distinction can be drawn between statements which are

voluntary and statements which are volunteered.

According to Kennedy C. J. it is not necessary in order

for a statement to be voluntary that it be volunteered.

Thus, a statement obtained from an accused must be

voluntary in the sense described by Lord Sumner in

Ibrahin

The King.

Judicial discretion to exclude state-

ments in evidence is permissible only when they have been

held to be voluntary beyond all reasonable doubt.

The

kind of circumstances which a judge can take into

account in the exercise of his judicial discretion were

referred to by Kennedy C. J. in

A.G. v McCabe

"He

will differentiate between statements led to by questions

put to a person not in custody for the purpose of the

investigation of crime and the tracing and arrest of the

party and confessions resulting from questions put to a

person in custody not so much to clear up doubtful

matters in a narrative by him as to trap him or put

pressure on him".

In The

Queen

Johnston

the Irish Court of Criminal

Appeal considered the question of the interrogation of

suspects by members of the police force. A number of the

dissenting judgments reflect a particularly hostile attitude

towards the practice of interrogation.

These opinions

supported the view that answers given to questions which

were put to a prisoner during interrogation were not

voluntary. This view was rejected by Mr. Justice Kenny

Galvin.

Thus, the conception of voluntariness

embodied in the judgment of Lefroy C. J.

does not, it is

submitted, represent the law. Nonetheless the position in

this jurisdiction with respect to admitting the inculpatory

statements of an accused in evidence represents a clear

commitment to a principle of voluntariness. A

consequence which can be attributed to the rejection of

the concept of voluntariness as understood by Lefroy

C. J. is that judicial scrutiny has dwelt predominantly

upon specific issues like the presence or absence of

inducements. A narrowing of the judicial inquiry has

taken place which, it can be argued, has resulted in a

limitation upon the consideration of the psychological

dimension of an accused's detention in custody.

3. Values which are protected by the Voluntariness Test

In identifying the values which the voluntariness test

may be said to protect it is helpful to bear in mind that

this requirement of our law is just one of the many

demands emanating from the adversarial and accusatorial

nature of the criminal justice system. The consistent

refusal by the courts to rely on involuntarily obtained

statements springs from the judicially perceived danger

that such statements are inherently untrustworthy and

that innocent individuals should not be wrongly convicted

by unreliable evidence.

In this respect judicial insistence

upon the voluntary nature of an accused's statements

may be seen to comply with the constitutionally

prescribed mandate of a fair trial.

The voluntariness

requirement clearly operates as an exclusionary

mechanism which strengthens the values underlying the

accusatorial and adversarial nature of the Irish system of

criminal justice.

The words of Hawkins that "the law will not suffer a

prisoner to be made the deluded instrument of his own

conviction"

seems to focus on the idea of the

presevation of the individual's sense of reflective

autonomy. The preservation of such autonomy requires

that the individual

qua

individual must be accorded a

certain level of respect by the executive. This is because

the individual as a rational and moral being is capable of

acting freely and responsibly. These human attributes

invest the invididual with a dignity which arguably can

compel the provision of procedures so that a truly free

and rational choice can be made in the exercise of the

right to remain silent. The kind of procedures which

would facilitate choosing between speaking and remaining

silent, on the part of the individual suspect, are those

calculated to supply him with sufficient information so

that whatever the eventual choice it will at least be an

intelligent and informed one.

There has been no judicial discussion in this

jurisdiction which treats the notion of informed choice

related to the dignity of the individual. Irish judges in

excluding involuntarily obtained confessions have, it

would seem, been concerned with preserving the integrity

and fairness of the trial process. The judicial gaze has

been fixed firmly on the trial and hardly at all on the

suspect defined as an ethical entity who deserves, solely

by virtue of his inherent dignity, safeguards guaranteeing

the conditions necessary to make an informed choice on

whether to submit to interrogation or to remain silent.

The voluntariness requirement is also resorted to by the

courts for a more indirect purpose, namely, the

disciplining of the police for using improper methods in

obtaining confessions from suspected persons.

In so

doing expression is given to a deep-rooted feeling that the

police must obey the law while enforcing it. What is

recognized here is the danger to life and liberty which

results from illegal methods used to secure convictions.

4. Some Criticisms of the Voluntariness Test

Voluntariness as defined in the context of the law

relating to confessions is a term of art.

statement,

according to Kennedy C. J., may be voluntary "though

not necessarily volunteered".

The legal conception of

what constitutes a voluntary statement may thus be

viewed as implying the use by officials of a certain

permissible level of compulsion. It may be argued that all

statements, even though made in stressful situations, are

voluntary in the sense that an individual elects between

possible alternatives. However, if the question is whether

a statement would have been made in the absence of

199