The Gazette 1992

GAZETTE

JANUARY/FEBRUARY 1992

might oversee interrogations would certainly be a welcome develop- ment but whether it would work in practice is open to doubt. The Criminal Law Revision Committee in the UK were of the view that such a system would be unwork- able. However, it must be admitted that if adequate safeguards were implemented and certainly if they extended to a right of a suspect to have either a judicial figure or indeed even his solicitor present throughout all interviews one of the main arguments against abolishing the right to silence wou ld disappear.

to almost all serious crime. Mr. Barnes rightly pointed out that some crimes in the fraud area such as conspiracy to defraud and falsification of accounts were not caught by the Section. The reason such crimes are not caught is en t i r e ly h i s t o r i cal and t he draughtsmen of the 1984 Act obviously did not realise that these crimes were being excluded from the ambit of the Act. A simple amendment to the Act would solve the problem. Mr. Barnes made much of the fact that because of this loophole many "sophisticated upmarket criminals" have escaped the rigour of the law. If this is so and he provided no evidence that it is, it is a loophole that can be easily closed without interfering with the right to silence. Similarly, Mr. Barnes stated that essential powers of the police such as powers of entry, search and seizure are even more restricted and are often non existent. This is news to me but, if it is so, surely it would be more appropriate to recommend how they could be updated rather than attacking the right to silence. Protection of suspects Mr. Barnes concedes that any dilution of the right to silence would require the introduction of safe- guards for the p r o t ec t i on of suspects. I believe that he is being sincere about this but some of the safeguards mentioned by him, such as audio and video taping of inter- views, have been recommended as far back as 1972 in the UK (cf Criminal Law Revision Committee Eleventh Report) and in 1978 in Ireland by the O'Briain Committee. Indeed similar recommendations were again made in 1990 by the Martin Committee. To date nothing has been done about them here. The Regulations for the Treatment of Persons in Custody in Garda Siochana Stations (S.I. 119/1987) have had, insofar as they go, a beneficial influence from both the prosecution and defence per- spective but they do not provide for electronic recording of interviews. The other recommendation made by Mr. Barnes that a judicial figure

and police enquiries". I believe that many Gardai would prefer this new approach. There is no doubt that confessions have been obtained by illegal and unconstitutional means in the past and that innocent people have been convicted. Mr. Barnes recognises this. These cases must be seen as open wounds on the system of justice. Furthermore, even when the Gardai act in a proper manner allegations of impropriety may be made against t hem by an accused attempting to have a confession set aside. A large amount of criticism by persevering

"If adequate safeguards

were implemented

and certainly

if

they extended

to a right of a suspect to have either a judicial

figure or indeed even his solicitor present throughout

all

interviews

one of the main arguments

against abolishing

the

right to silence would

disappear."

Investigate scene of the crime The kernel of the problem lies in differing perspectives as to how Gardai should conduct investiga- tions. There is no doubt that the vast majority of Garda investiga- tions are based on the desire to have a suspect confess his guilt. The main thrust of the investigation is therefore to arrest a likely suspect, interview him in the Garda station away from his family, friends and other supports and to obtain a confession. Obviously the right to silence can be a huge hindrance to such an investigation. My argument is that it would be preferable for all to move the locus of the Garda investigation out of the interview room in the police station and start with the scene of the crime. This would require increased reliance on forensic testing and proper detective work. In making this suggestion I am only echoing the remarks made by the O'Briain Committee at page 14 when they stated that the ex- tremely high percentage of serious crime solved by confessions... "seems to indicate a high degree of reliance on self incrimination, and an inability or reluctance to secure evidence by scientific investigation

directed at Gardai stems from this over-reliance on confession. If alternative means of investigating crime are not developed a great many Gardai will take the easy way out and rely on confessions. Surely pushing up the "crimes solved" statistics by interviewing a drug addict who will admit to anything in order to get bail cannot be good for the morale of the force. Presence of lawyer during questioning Mr. Barnes refers to the "sophisticated upmarket criminal". This creature is also mentioned by the Criminal Law Revision Com- mittee who refer to them as "sophisticated professional crimi- nals". Their argument is that these persons know their legal rights very well and use the right to silence to avoid conviction or even charge. The vast majority of suspects are however poor, badly educated and not properly equipped to deal with the huge trauma associated with being in a police station. The Martin Committee set out at page 32 what it must be like to be deprived of personal liberty in a Garda station. " I n particular, where the person being interviewed is young

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