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.

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 7 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". 8 However, the following judicial statements do support a coherent view of the voluntariness test. O'Higgins, C. J. in People (D.P.P.) v. Afa

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 v. 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. 2 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. 3 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". 4 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. 5 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. 6 Among the most potent factors recognized by Wigmore in inducing persons to falsely admit guilt are threats and promises.

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