Criminal Law Assignment

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Assignment Question:

A person who is charged with a criminal offence enjoys certain rights. The principle right is that of the right to silence and the right not to incriminate yourself. The right to silence is an immunity, which differs in nature, origin, incidence and importance. The suspect’s immunity was developed in order to avoid the risk of untrue confessions being obtained from a person in police custody. The law does not prohibit a suspect from confessing to a crime. It does however provide that a suspect should be free to remain silent should he so choose and that he should be informed of his right to do so.

Analyze with reference to relevant case law.



When the police arrest a person, they should recite to him the Miranda warning. The Miranda warning or as also known as the Miranda rights mentions some of the rights that an arrested person enjoys. Such rights are the right to silence and the right to speak to an attorney. If these rights were not mentioned to the arrested person, then any of the confessions that he might have made may be excluded in their prosecution as evidence. We will look in this assignment at the Miranda rights and in particular looking at the right to silence and the right not to incriminate yourself. And we will look at some of the cases that are related to this topic.

What is the right to silence?

The right to silence is used by persons in Garda custody for a criminal offence. Where they can refuse to answer any of the questions made to them by the Garda.

The right to silence is not only a common law but it is also one of the constitutional rights. The right to silence is mentioned in Bunreacht na hEireann, or the Irish constitution in Article 38.1.

In some cases however, the legislation began to require answers to some questions in specific circumstances.

This was seen in the case of Heaney v. Ireland . Here the defendants were required to give a full account of their movements and whereabouts at a certain time as required under section 52 of the Offences against the State Act 1939. They challenged the constitutionality of this requirement arguing that it is infringing their constitutional right to silence. The Supreme Court agreed that there definitely is a constitutional right to silence and that this right derives from the freedom of expression under article 40 of the Irish Constitution. The Supreme Court held that the right to silence was subject to some limitations and that the state has the right to intrude it in order to maintain peace and order to the public. The court showed the view that article 52 of the Offences Against the State Act 1939 was constitutional as it had acceptable balance between “any infringements of the citizen’s rights with the entitlement of the state to defend itself ” .

Similarly, the case of Rock v. Ireland also dealt with the right of silence being infringed. Here the defendants questioned the constitutionality of sections 18 and 19 of the Criminal Justice Act 1984. These sections mention the inferences that can be drawn from failure to report objects as well as their presence at a certain place, which the Garda thinks that it can be relevant to the offence that they have been arrested for. The Supreme Court once again stated that the constitutional right to silence was not absolute and that sections 18 and 19 were absolutely acceptable to the constitution.

As was seen in both these cases mentioned, Legislation plays a big part in restricting the right to silence. Apart from the legislation mentioned in the cases, section 2 and 5 of the Offences against the State Amendment Act 1998 which deals with Garda questioning and section 7 of the Criminal Justice (Drug Trafficking) Act 1996 which deals with inferences from the failure of the accused person to mention particular facts.

Although there have been times were none of the above legislation is put in practice, the right to silence is...
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