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”.
