McDowell defends ‘U-turn’ on right to silence

TÁNAISTE Michael McDowell has said his plan to further restrict the right to silence is different to a proposal he rejected in 2003.

But the Green Party last night accused the Justice Minister of electioneering after details of his U-turn on the issue emerged. They believe he is recycling the right-to-silence restriction he rejected in 2003, because crime will be a major issue in the forthcoming election.

A spokesman for Mr McDowell said there was no U-turn involved: “It’s not comparing like with like.”

But study of both proposals by the Irish Examiner suggests they are the same.

The right to silence is restricted for a number of serious offences, such as terrorism and drug trafficking.

In the case of the latter, Section 7 of the Criminal Justice (Drug Trafficking) Act, 1996 allows for a judge or jury to draw inference from a defendant’s failure to mention while being questioned or charged any fact which his or her defence later relies on in trial.

The proposal before Mr McDowell in 2003 was to extend that provision to “all serious offences”.

The Government’s expert group which made the proposal also suggested how it could be legally worded.

The wording said that if, when being questioned or charged, a person “failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time he or she could reasonably have been expected to mention… the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged … may draw such inferences from the failure as appear proper.”

In proposed legislation announced last month, the right to silence would be restricted in “all arrestable offences” and legal wording is virtually identical to 2003. It says if, when questioned or charged, a person “failed to mention any fact relied on in his or her defence in those proceedings…the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged…may draw such inferences from the failure, as to the truthfulness of the fact so relied on, as appear proper.”