The question in the title to this post is very likely a common question to be put to suspects by Gardai.

The reason is found, firstly, in the terms of Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007) and secondly, in the fact that, here in Ireland, not many Garda stations are equipped for electronic monitoring of questioning of suspects.

Under Section 19A an adverse inference may be drawn from the failure of an accused to mention a fact, later relied upon by him in his defence, while he is being questioned etc., by the Gardai.

Section 19A contains the following sub-section:

(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.”

Section 19A only applies if the person is charged with “an arrestable offence”.

“an arrestable offence” was defined in the Criminal Law Act 1997 as:

“arrestable offence” means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence;”

To put that in context, Section 4 (6) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 provides:

(6) A person guilty of theft is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.”

Few people charged with theft are sentenced to ten years in prison, but they might be, and that is sufficient to make theft “an arrestable offence”.

Consequently, while being questioned about the theft of groceries in a supermarket, say, the Garda Síochána, in preparation for any subsequent trial, knowing that the questioning will not be recorded electronically, are very likely to say,

…sign here, to say you don’t mind us not recording you”.

Here in Ireland we have invented a peculiar process (in Statutory Instrument 233 of 1999) to assist parties to litigation to have justice in their case.

Firstly, on principle, we conditionally deny them access to the relevant documentary evidence in the possession of the other party.

They can have that access on this condition; they must justify the request for access.

Clearly, “relevance” is not an admissible justification, otherwise the request would be;

Please discover relevant documents to the Plaintiff”.

In England and Wales, by contrast, that, in effect, is the request (under Civil Procedure Rule 31.5). Furthermore, although the concept of limiting discovery is admitted, it is the person of whom discovery is required who must justify any claimed limitation.

CPR defines “Standard Disclosure”:

Standard disclosure requires a party to disclose only –

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.”

In Ireland, it is the person making the request who must justify it. In principle, that would be fine, if the process was not emptied of intellectual content by requiring that person to justify the request, not by relevance (that, bizarrely, is assumed) but by necessity.

Necessity implies that the case will be lost if the documents are not discovered. That is an extreme case or position. It could happen, but if it did only the party holding the document (undiscovered) would ever know it.

To know of a document to the extent of needing it, is to know it intimately. Only the party holding the document can be intimate with the document.

In short, to show necessity is an unattainable standard.

It is high time we went back to 1998.