An important judgment on the right to silence

The rules governing the conduct of criminal trials must attempt to strike a balance between truth and justice. There is a view, mostly closely associated with Jeremy Bentham, that the sole purpose of any legal proceeding, civil or criminal, should be to discover the truth and that no competing considerations should be allowed to frustrate or impede the attainment of that objective. Bentham, especially in A Rationale of Judicial Evidence (1827), claimed that the essential purpose of any trial was “rectitude of decision”, another way of saying that it should, as far as possible, aim to discover the truth. However, even he accepted that this principle had to be subject to some constraints and, as befitted a utilitarian, he identified the avoidance of expense, delay and vexation as permissible limitations. But he would abolish any rules, especially exclusionary rules, that might hinder the quest for truth.

Of course, Bentham and others in the rationalist tradition such as Thayer and Wigmore had to accept that a trial is usually an exercise in reconstruction. The event to which it relates, say a murder, a serious assault or a burglary, will have happened sometime in the past. Nowadays, the typical interval between the event and the trial is probably longer than ever before. Further, there may be no independent witnesses of the event. The trial, therefore, entails an effort to construct an evidence-based narrative that corresponds as closely as possible to the event which had an independent existence of its own. William Twining summarises this correspondence theory of the truth as follows:

“Present knowledge about past events is typically based upon incomplete evidence; it follows from this that establishing the truth about alleged past events is typically a matter of probabilities or likelihoods falling short of complete certainty.”

(Twining, Theories of Evidence: Bentham & Wigmore (London, 1985) 13. See also John Jackson, “Theories of truth finding in criminal procedure: An evolutionary approach” (1988) 10 Cardozo L.R. 475, one of the great pieces of writing on evidence theory during the past half-century or so).

Neither in Ireland nor in any other country with a similar legal culture is the Benthamite doctrine fully applied. We hold that discovering the truth is a vitally important aim of the trial but that it is not the only value that must be observed. Legality, fidelity to the rule of law, procedural fairness and promoting “equality of arms” between defence and prosecution are among the other values that must, by our lights, inform the trial process. What Art. 38.1 of the Constitution of Ireland guarantees to every accused person is a trial in due course of law, not a trial that has the discovery of the truth as its sole and exclusive purpose. In this connection, however, it should be recalled that not all exclusionary rules are inimical to discovering the truth. Excluding evidence that is unreliable or that might seriously prejudice or distract a fact-finder may enhance rather than diminish the prospects of arriving at the truth.

It is seldom that appeal courts devote much attention, expressly at least, to the complex relationship between truth and justice, which is why the recent judgment of the Court of Appeal People (DPP) v S.M. [2020] IECA 170 (per Donnelly J) is particularly interesting. The appellant (M) was convicted of five counts of indecent assault committed against one of his sisters and one count of indecent assault committed against another sister. All the offences were committed during the period 1981 to 1987. He was given an effective sentence of three-and-a-half years’ imprisonment which was reduced somewhat on appeal, and that will be the subject of a future post. While M was detained by the Gardaí, he answered many questions at great length; in fact, the memoranda of interviews left to the jury ran to 78 pages. However, there were 13 questions he did not answer and these are conveniently described as “no comment” answers. The memoranda were suitably edited before being given to the jury so as to exclude all questions to which there had been no comment. This was done in accordance with the standard practice adopted in the wake of People (DPP) v Finnerty [1999] 4 I.R. 364. As the Canadian Supreme Court said R v Chambers [1990] 2 S.C.R. 1293, “it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer’s questions but nevertheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question that suggested his guilt.”

In People (DPP) v S.M., defence counsel, when cross-examining the interviewing Garda, asked certain questions that might be interpreted as suggesting that M had answered all questions put to him while in detention. The following provides a flavour of the relevant part of the cross-examination (and here I abbreviate substantially, but the relevant part of the trial transcript is reproduced in the Court of Appeal judgment, pp 3 to 5):

“Q. So in essence what the gardai are saying to somebody is you have the right to silence, if you wish to exercise it; isn’t that correct?

A. Yes, that’s correct.

Q. And I think that I’m sure in your experience and you have considerable experience, there would have been occasions when a person has been detained and you would have arrested them and that particular person in light of the caution they have received and the advice and notice they received may have decided to exercise their right to silence, and opt not to answer any questions asked by An Garda Siochana?

A. Yes, that’s correct.

Q. But obviously in this case, it’s readily apparent from the lengthy interviews we’ve listened to, there were lengthy questions and lengthy answers given by [M]?

A. Yes, that’s correct.

Q. And he answered questions given by – by yourself?

A. He did, he answered questions freely.”

Earlier in the same cross-examination, there was the following exchange:

Q. Yes, okay, and I think to strip it all down and to boil it down, when [M] was asked about the allegations that were made individually by [the complainants] and what his attitude in response to those was he denied the allegations that were made by each of them, isn’t that correct?

A. That’s correct.”

At the conclusion of the cross-examination, counsel for the prosecution applied to re-examine the Garda so as to bring to the attention of the jury that there were further questions to which there had been “no comment” answers. The judge permitted this to be done. M was convicted, and the sole ground of appeal was that the trial judge had erred in admitting into evidence the “no comment” answers given by M to the interviewing Garda.

To be fair to defence counsel, at no point, as far as I can see, did he or she directly ask the Garda to confirm that M had answered every question put to him or that he had not exercised his right to silence in respect of any question. Indeed, the Court of Appeal made clear that it was not saying that defence counsel had set out to deceive in a deliberate manner. However, having analysed the relevant portion of the transcript, the Court concluded that there was “no doubt that this line of questioning was designed to emphasise to the jury that this was an accused person who did not rely on his right to silence in contrast to other persons who do so” (para. 17).

The principal question then for the Court of Appeal was whether M had suffered a violation of his constitutional right to silence as a result of the entire content of the interviews, including the “no comment” questions being made known to the jury. In normal circumstances, as already noted, revealing those questions and answers would be a breach of the right. However, the Court stressed that different considerations apply where an accused has led to the jury to believe that he did not exercise his right to silence. As the Court of Appeal phrased the matter (para. 21): “The issue that arises here is whether a misrepresentation in respect of the exercise of a constitutional right can or should be corrected”

It was submitted in effect on behalf of M that it should never be possible to cross-examine in relation to the refusal of a defendant to answer questions during interview. However, the Court rejected this argument, saying (para. 24): “That would completely trammel the purpose of a criminal trial: the search for the truth bound by rules of evidence. It would amount to a travesty of justice.” It continued (para. 25):

“In our view, both the common law and the statutory encroachments on the rules of evidence permit factually incorrect but relevant matters to be countered through cross-examination, by calling evidence in rebuttal or re-examination as appropriate.”

The Court went on to say that the constitutional right to a fair trial does not extend to the right to misrepresent the facts, and the constitutional right to silence does not confer an immunity from all appropriate references being made to the times the accused exercised it. Misrepresenting the exercise of the right to silence is akin to a waiver of the right to the extent necessary to rectify the misrepresentation:

“When an accused goes behind the agreed (or ruled on) editing of the interviews, then he has in effect waived his right to silence to the extent needed to correct the record. He cannot gain an advantage simply because he sought that advantage. The concept of a trial in search of the truth must permit the prosecution to correct an incorrect impression that has been conveyed to the jury.” (Para. 31).

Finally, and importantly, the Court stressed that in a case such as this, the measure adopted by a trial judge to correct an erroneous impression that may have been conveyed to the jury must be proportionate in light of the overall circumstances. Here there were only 13 questions, out of a very large number, to which there had been “no comment” answers. The Court said that in a situation like this, prosecution counsel must tread warily because it “is not the situation that the door once opened permits a flood.” The Court concluded (paras 37 and 38):

“We make it clear that in each case if a jury is misled as to the exercise of the right to silence, there must be an individual assessment of the proportionate interference with the right to silence by way of remedy. Not every case will require or permit the full questions and answers to be read to the jury. To adduce evidence of the fact that he did not answer every question will be sufficient in many, if not most, cases.

In the present case, the trial judge held in his decision on the discharge application that it was also relevant that the jury be told of the specific questions or otherwise they might wonder why those particular allegations were not put to him. We are not convinced that this on its own would be a relevant basis for admitting the evidence. However, we are satisfied that it was just and proportionate to have admitted the questions in light of the totality of the circumstances in which that evidence was given in this case and where the jury were told as to the reason for the admission and were warned not to draw an adverse inference.”

The appeal against conviction was therefore dismissed.

I am not here concerned with the merits of this decision. My knowledge of the case derives solely from what appears in the judgment. However, if the Court was right in concluding, in the passage quoted earlier from para. 17 of the judgment, that the line of questioning by the defence during cross-examination was designed to convey to the jury that M did not exercise the right to silence, then the legal conclusions drawn by the Court are surely logical. A party cannot, as the Court said, “approbate and reprobate”. (Henchy J. used similar language in Corrigan v Irish Land Commission [1977] I.R. 317 at 326, only there he had warmed to the theme: “The complainant cannot blow hot and blow cold; he cannot approbate and then reprobate; he cannot have it both ways”).

Here, there was no genuine countervailing right or value to justify a constraint on establishing the truth in relation to the particular matter at issue. There would have been such a right (to silence) had it not been waived (assuming, again, that the Court was correct in deciding that it had been). As the Court of Appeal said (para. 29), the right to silence “does not sit above” the right to a fair trial but is part of the right to a fair trial. But the right to a fair trial does not extend to a right to misrepresent facts, even where this has been done inadvertently. Any such misrepresentation or error can be, and usually is, easily corrected.

A rather similar situation arose in People (DPP) v Almasi (Supreme Court, 26 June 2020), about which there will be a later post, except that there the trial court was held to have erred in permitting the prosecution to edit out of the memoranda of interviews certain statements made by the interviewing Garda as part of the questioning. The application had been made and granted in the trial court on the basis that it would be unfair to the prosecution to allow those statements to be made known to the jury. The Supreme Court dealt at length with the matter but one way of interpreting its decision is that permitting such editing impeded the discovery of the truth by the fact finder in relation to the matter in question.

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