I have adverted HERE to the provisions of Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007).
Section 19A is one of the Sections in Part 4 of the Criminal Justice Act 2007. Part 4 has had a predecessor (so to speak) in the United Kingdom in Section 34 of the Criminal Justice and Public Order Act 1994.
That section has caused a lot of difficulty in the UK courts.
The UK Court of Appeal in R. v Bresa , stated:
As we made clear in our discussion of the authorities at the commencement of this judgment, Section 34 is a very difficult area. In our view however the criticisms that can be made of this direction are soundly based. The question that remains is whether, having regard to the misdirection, we could conclude that the conviction was safe. There was a very powerful case against the appellant and without an explanation from the solicitor as to the basis on which the appellant was being advised not to comment, there is a powerful case for saying that the jury could be sure that the appellant did not mention self-defence in his interview because he had not at that stage thought of that as his defence. But we cannot be sure what part the direction on Section 34 played in the jury’s decision making. It was a significant aspect of the summing up and for that reason it seems to us that we could not conclude that this conviction was safe.”
What the Court of Appeal were considering was the direction the judge had given to the jury in the “Bresa” case.
They summarised the terms of the direction that the judge was required to give to the jury:
The latest JSB guideline direction, which appears at Archbold 2004 Ed at para 15-427, has taken account of the above authorities and that supports the view that among the key features of a direction under Section 34 are the following. First there needs to be the striking of a fair balance between telling the jury of a defendant’s rights [to remain silent or not to disclose advice], and telling the jury that the defendant has a choice not to rely on those rights. Second there needs to be an accurate identification of the facts which it is alleged a defendant might reasonably have mentioned. Third there needs to be a warning that there must be a case to answer and the jury cannot convict on inference alone. Fourth there must be a direction to the effect that the key question is whether the jury can be sure that the accused remains silent not because of any advice but because he had no satisfactory explanation to give.”
In the UK, the accused is entitled to have his solicitor present with him during his interview with the police. This is not the case in Ireland.
In Ireland, under Seb-section 3 (b) of Section 19A, the Section only applies if the accused was given a reasonable opportunity to consult his solicitor.
Consider what a solicitor might say to an accused; the solicitor is very likely not acquainted with the accused [hence the title to this post}. The solicitor will need time to take full instructions and analyse the facts; in these circumstances the best advice is to advise him to say nothing.
If that is the advice given to the accused, what possible adverse inferences can be drawn if the accused fails to mention a fact he later relies on for his defence?
It should be remembered that the Gardaí will have cautioned the suspect that;
you are not obliged to say anything, but anything you do say will be taken down and may be used in evidence against you”.
It should be further remembered that the advice a solicitor gives to his/her client is privileged; the client is not obliged to divulge what advice he got from his solicitor.
So, the accused is in a position where i) he is not obliged to say anything; ii) his solicitor’s advice is secret (privileged); and iii) he is menaced with an adverse inference if he remains silent.