ROCK v. IRELAND
Inadmissible
Georg Ress
The applicant is an Irish citizen, born in 1968 living in Dublin. He is represented before the Court by Ferry’s, Solicitors, Dublin. A. “In or about the afternoon of 4 May 1994 the applicant was arrested in a cubicle in the public toilet of <a hotel>. The door had been forced open. The prosecution alleges that on the floor between the legs of the accused was a bag marked “Aer Rianta Duty Free at Shannon”. Inside the bag was a quantity of notes which appeared to be US dollars. The prosecution intends to call evidence from a member of the United States Secret Service Treasury Department that the dollars are forged. The applicant was conveyed to <a police> station where he was detained under Section 4 of the Criminal Justice Act 1984. The applicant was taken to an interview room by <two detectives>. In the course of the interview <Detective R> alleges that he explained sections 18 and 19 of the Criminal Justice Act 1984 to the applicant. The applicant gave his name and address in response to questions and in one instance replied <with the name of his girlfriend>. At 10.05pm the applicant was again taken to the interview room. Present were <two detectives>. Detective R alleges that he produced a copy of <a police manual> and read sections 18 and 19 of the Criminal Justice Act 1984 to the applicant and that he explained the meaning of the sections in ordinary language. He also made certain statements to the accused as to the meaning in law in regard to the sections. The applicant declined to reply to questions put to him during the interrogation.” The applicant does not dispute in his application to the Court that when he was arrested by the detectives, he was in a cubicle in the toilets of the hotel with the plastic carrier above-described bag between his legs. He does not dispute that, when he was asked what was inside the bag, he replied “What bag?” or that the plastic bag contained forged dollars. He accepts that he was cautioned on arrest as follows: “You are not obliged to say anything unless you wish to do so but anything you do say will be taken down in writing and may be given in evidence.” He also accepts that he responded a second time “What bag?” when asked about the bag. He also accepts that after one hour in the police station he was brought to an interview room and again cautioned in the above terms and that when he was again asked about the bag he replied giving his name and address only. The applicant does not dispute that he was interviewed a second time, given a copy of the police manual, that the detective in question read sections 18 and 19 to him and explained the meaning of those sections in ordinary language. He confirms that he did not proffer any explanation to the detectives. When the period of the applicant’s detention expired the applicant was arrested for an offence under section 8 of the Forgery Act 1913 and he was brought before the District Court where evidence was given of arrest, charge and caution. He pleaded not guilty and he was remanded on bail from time to time until he was returned for trial to the Dublin Circuit Criminal Court. His trial was subsequently adjourned pending his constitutional challenge to sections 18 and 19 of the Criminal Justice Act 1984. In its judgment of 10 November 1995, the High Court quoted, with approval, the judgment of the High Court in the case of Heaney v. Ireland ([1994] 3 IR 593) and considered that the constitutional right to remain silent could be diluted in certain circumstances. The constitutional validity of any such reduction in protection would depend on whether it was considered proportionate given the competing public and individual interests involved. Applying that test, the High Court found that the sections were not an excessive intrusion on the rights of an accused and were therefore not unconstitutional. The applicant appealed to the Supreme Court. That court considered that the above-cited case of Heaney v. Ireland did not automatically dispose of the issues in the case. Having analysed the provisions of section 18 (which operated in the same manner as section 19), the Supreme Court pointed out that the courts were not obliged to draw negative inference but could draw such inferences as appeared proper. It was a matter for the court, or the jury subject to the court’s directions, to decide whether any such inferences would be drawn. In so deciding, the court was obliged to act in accordance with the principles of constitutional justice and was under a constitutional obligation to ensure that no improper or unfair inferences were drawn or permitted to be drawn from such failure or refusal. Moreover, it was clear from the provisions of the section 18 that it did not interfere in any way with the accused person’s right to be presumed innocent or with the obligation on the prosecution to establish guilt beyond all reasonable doubt. The burden of proof on the prosecution in a criminal charge was not in any way affected by the provisions of the relevant sections, which merely provided a factor which might be adduced as evidence in the course of the trial. Furthermore, if such inferences were properly drawn, they amounted to evidence only and were not taken as proof. A person could not be convicted solely on the basis of such inferences, the inferences being corroborative of other evidence in relation to which the failure or refusal is material. As regards the right to remain silent, in particular, the Supreme Court noted that the State was constitutionally obliged to protect its citizens from attacks on their person or property but was obliged to have due regard for the constitutional rights of accused persons. The question was whether the restrictions which the relevant sections placed on the right to silence were any greater than was necessary to enable the State to fulfil its constitutional obligations, the court noting that the “principle of proportionality” was a well established tenet of Irish law. The court considered that sections 18 and 19 of the 1984 Act sought to achieve that balance. It was not the court’s role to decide whether a perfect balance had been reached but merely to decide whether the legislature had acted within the range of what was permissible. The court found that the legislature had done so, considering two factors limiting sections 18 and 19 important; an inference could not form the basis of a conviction in the absence of other evidence and an adverse inference could only be drawn where the court deemed if proper to do so. An example of where it would be improper would be where the prejudicial effect of an inference would wholly outweigh its probative value as evidence. On 20 October 1998 the applicant’s case came on for trial in the Dublin Circuit Criminal Court. The applicant pleaded guilty and he was given a five-year suspended sentence on condition that he enter a bond of good behaviour for three years. The applicant entered the bond. B. Relevant domestic law and practice Section 18 of the 1984 Act, in so far as relevant, reads as follows: “(1) Where (a) a person is arrested without warrant by a member of the <police>, and there is; (i) on his person, or, (ii) in or on his clothing or footwear, or (iii) otherwise in his possession, or (iv) in any place in which he is at the time of his arrest any object, substance or mark, or there is any mark on any such object, and the member reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of the offence in respect of which he was arrested, and (b) The member informs the person arrested that he so believes, and requests him to account for the presence of the object, the substance or mark, and (c) The person fails or refuses to do so, then if, in any proceedings against the person for the offence, evidence of the said matters is given, the court, in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any other evidence in relation to which the failure or refusal is material, but a person shall not be convicted of an offence solely on an inference drawn from such refusal or failure. (2) References in subsection (1) to evidence shall, in relation to the preliminary examination of a charge, be taken to include a statement of evidence to be given by a witness at the trial. (3) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon. (4) Subsection (1) shall not have effect unless the accused was told in ordinary language by the member of the <police> when making the request mentioned in subsection (1)(b) what the effect of the failure or refusal might be. (5) Nothing in this section shall be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this section. …” Section 19 relates to the presence of an accused at a particular place and is similar in its effect to section 18. It reads, in so far as relevant, as follows: (1) Where (a) a person arrested without warrant by a member of the <police> was found by him at a particular place on or about the time the offence in respect of which he was arrested is alleged to have been committed, and (b) the member reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence, and (c) the member informs the person arrested that he so believes, and requests him to account for such presence, and (d) the person fails or refuses to do so, then if, in any proceedings against the person for the offence, evidence of the said matters is given, the court, in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or any other offence of which he could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any other evidence in relation to which the failure or refusal is material, but a person shall not be convicted of an offence solely on an inference drawn from such refusal or failure. (2) References in subsection (1) to evidence shall, in relation to the preliminary examination of a charge, be taken to include a statement of evidence to be given by a witness at the trial. (3) Subsection (1) shall not have effect unless the accused was told in ordinary language by the member of the <police> when making the request mentioned in subsection (1)(c) what the effect of the failure or refusal might be. (4) Nothing in this section shall be taken to preclude the drawing of any inference from a failure or refusal to account for his presence which could properly be drawn apart from this section. …”