Closing webinars of EmpRiSe project

On 28-29 June 2021 we held two successful webinars, which marked the end of the EmpRiSe project.

The webinars, attended by about 100 participants, brought together academics, policy-makers and practitioners to discuss issues around the protection of the right to silence in police interrogations from an interdisciplinary perspective and investigate possibilities for an EU action. The first webinar discussed the national findings on the law and practice around silence in police interrogation in four EU countries: Belgium, Ireland, Italy and the Netherlands. Each of these jurisdictions faces unique challenges with regard to ensuring effective protection of the right to silence in criminal proceedings in law and in practice. However some of the issues are similar, such as for instance: limited disclosure of case-related information to lawyers and suspects at the investigative stage; unclarities around the practice of drawing adverse inferences and probative value attached to silence; and the tendency to attach various kinds of negative consequences to suspects’ silence interpreted as non-cooperation with the investigation and the proceedings (or, conversely, to attach benefits to cooperation).

The second webinar addressed the possible solutions to the issues identified in the national reports, and the action to be taken on the EU level and domestically with the view to ensuring better protection of the right to silence and other procedural rights of suspects in criminal proceedings. Panelists in the second webinar included Dr Fabien Le Bot from the European Commission, Emmanuelle Debouverie from Fair Trials, Dr Dorris de Vocht from Maastricht University and Limburg District Court, Netherlands and Shalom Binchy from Binchy & Co. Solicitors, Ireland. Finally, professor Yvonne Daly presented the experience of the training program for criminal defence lawyers organised by the EmpRiSe project in Ireland.

Participants agreed that legislating with the view to ensuring better protection of the right to remain silent is a perilous task. The right to silence is particularly theoretical, complex and intertwined with other fundamental principles of criminal procedure and procedural rights. Improving disclosure regimes, strengthening the right to legal assistance at the investigative stage, and developing better safeguards around the drawing of adverse inferences and remedies for breaches of the right to silence were named among possible legislative interventions. However, it was noted that improving legislation on the right to silence on the EU and national levels provides only partial solutions, because effective protection of the right depends on the attitudes, cultures, and practices of the respective actors, and primarily judges, prosecutors and police. The centre of gravity of the respective action should rather lie in practical measures such as developing better procedures and methods for interrogating suspects, and providing training aimed inter alia at raising awareness of the respective actors of the importance of the right to silence as a crucial element of the right to a fair trial.

Read here the full report from the two closing webinars.

Watch the recording of the webinar # 1: “Silence is not empty: it is full of answers. Findings from comparative socio-legal research on the meaning and implications of the right to silence in police interrogations”.

Watch the presentation of Dr. Dorris the Vocht at the webinar # 2 “Towards an evidence-based approach to the right to silence in criminal proceedings: debunking myths and taking action.”  

Listen to the podcast of the presentation of Professor Yvonne Daly during webinar # 2 about the training programme developed by the EmpRiSe project.

EmpRiSe Ireland Report

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.

EmpRiSe Panel at SLSA 2021 Conference

On 31 March 2021 the EmpRiSe project team (Professor Yvonne Daly, Diletta Marchesi and Dr Anna Pivaty) presented the preliminary results of the empirical research in the Netherlands and Ireland viewed against the background of our comparative legal findings from Belgium, Ireland, Italy and the Netherlands in a pre-arranged panel ‘Police Interrogations: The Guilty Sound of Silence’.

The right to silence is a legal right of criminal suspects, which enjoys a high degree of formal protection in the four examined legal systems. However, silence is often perceived by police and other criminal justice actors as hindering effective police interrogations and the discovery of ‘the truth’. In practice, the exercise of the right to silence leads to various negative consequences for suspects. These include, for instance, the risk of silence contributing to the criminal conviction (alongside other evidence) and negative implications for pre-trial detention and sentencing decisions. In practice, a variety of mechanisms exist and are used to overcome a suspect’s decision to remain silent in the face of police interrogation. 

In this panel, we examined the legal and empirical aspects of the exercise of the right to silence and related rights of suspects in criminal proceedings. The first paper presented by Diletta Marchesi examined the comparative legal aspects of the right to silence at police interrogations and the legal implications of its exercise in the four jurisdictions. The second and the third papers examine the practical reality of the right to silence at police interrogations in Ireland and the Netherlands, and its impact on later proceedings, as reflected in empirical research studies carried out respectively in Ireland and in the Netherlands. In Ireland, the research comprised (focus group) interviews with lawyers (barristers and solicitors), judges and staff of the Office of Director of Public Prosecutions. In the Netherlands, the research consisted of (focus group) interviews with police, judges and former suspects, and an examination of written case files.