NEWS
The right to silence questioned

Tánaiste and Minister for Justice Michael McDowell is proposing to review some of the principles underpinning criminal trials in Ireland, such as the right to silence and the exclusion of an accused person's previous criminal record from evidence. Stephen Collins, Political Correspondent, reports
In the course of a major speech delivered at a public meeting in Limerick last night, Mr McDowell announced the establishment of a group to review the operation of the law to see if it leaned too far in favour of the criminal.
Mr McDowell said the principles underpinning the law had ensured that justice was done and seen to be done, for those who came into contact with the law.
"However, along the way a consequence of that development and reform of the law may have been that the needs, concerns and rights of victims of crime may have unintentionally become secondary to the rights and protections for the criminal.
"Somehow it seems that we may now have arrived at a situation where on occasions the scales of justice are tilted too heavily to one side. Unfortunately when that occurs, that imbalance is likely to favour the criminal rather than the innocent victim all too often," he said.
Mr McDowell said the right to silence and the associated privilege against self-incrimination were common law rules which derived from the fundamental principle that an accused is innocent until proven guilty. The right to silence had been modified to provide for adverse inferences to be drawn against a suspect who declines to answer questions while being questioned in Garda custody.
"What is interesting to note, if one stands back from the development of the law in this area and considers the bigger picture, the focus is almost exclusively on the rights of the accused. Of itself, there is absolutely nothing wrong in that, of course. But where do the rights of victims stand in such cases? "Has the time come to consider broadening the circumstances in which an inference can be drawn from the failure of an accused to respond to fair questioning duly recorded not as sufficient proof of guilt but as corroboration of other evidence of guilt?"
He said that character evidence was another area that should be looked at. In most cases at present the accused could conceal from the judge and jury the fact that he is of bad character or has serious previous convictions.
"But why should the fact that a person has been convicted of serious offences in the past be concealed from those who have to decide on the credibility of his evidence?"
He said: "The presumption of innocence of the charge before the jury is one thing; but is presuming that all witnesses, including the accused, are equally credible, frankly speaking, a fiction too far in many cases?" © The Irish Times

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