The right to silence is a constitutionally protected right in the Irish legal system and is a critical component of the right to a fair trial. Its rationale is linked to the broader concept of the presumption of innocence, ensuring that the burden is on the state to prove that an individual has committed an offence. Despite the significance of the right, to date little has been known about its operation within the system, from garda interview, through decisions on charge, bail, at trial, and at the sentencing stage.
As part of the EmpRiSe Project the Irish team, based at Dublin City University, have addressed this gap in knowledge by conducting legal and qualitative empirical research with 50 professionals working in the Irish criminal process, including solicitors, barristers, prosecutors, judges, and retired gardaí (police officers). The Report details the operation of the right to silence in the pre-trial investigative stage of the criminal process, as well as the downstream consequences of reliance thereon.
Unique among the jurisdictions under examination within the EmpRiSe project, in Ireland there are a significant number of legislative provisions which allow for the drawing of adverse inferences at trial from failure or refusal to provide certain information at the point of garda (police) interview. This is one area which is explored within the project, looking at the use of such provisions in garda interviews, their impact on decisions on charge, and their significance at trial. The report also details the factors which impact, more generally, on an individual’s decision to remain silent or otherwise, the issues considered by solicitors advising suspects on the exercise of the right, garda interview practices and training, the judge’s charge to a jury relating to the right to silence, and the impact of exercising the right on sentencing. For more information see the full Report and the Policy Brief.