The Gazette 1980

DECEMBER1980

GAZETTE

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. 26 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. 27 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" 28 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. 29 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. Voluntariness as defined in the context of the law relating to confessions is a term of art. A statement, according to Kennedy C. J., may be voluntary "though not necessarily volunteered". 30 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 4. Some Criticisms of the Voluntariness Test

advantage exercised or held out by a person in authority". 15 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". 16 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. 17 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. 18 Thus, a statement obtained from an accused must be voluntary in the sense described by Lord Sumner in Ibrahin v. The King. 19 Judicial discretion to exclude state- ments in evidence is permissible only when they have been held to be voluntary beyond all reasonable doubt. 20 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 : 21 "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". 22 In The Queen v. Johnston 23 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. 24 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 in Galvin. Thus, the conception of voluntariness embodied in the judgment of Lefroy C. J. 25 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