Sir, - The new crime-fighting measures announced by the Minister for Justice, John O'Donoghue, are to be welcomed. Unfortunately, not everyone is of the same opinion, and some, most notably the Irish Council for Civil Liberties, have chosen to befoul the new legislative proposals.
The proposal to curb a suspect's right to silence has attracted serious criticism. One argument in favour of modifying the right to silence when questioned by police is that it would improve the efficiency of criminal investigations by the gardai.
If suspects were informed that, if charged, their refusal to answer police questions could be used at trial as a basis for drawing adverse inferences in assessing the defence case, suspects with bona fide explanations for the circumstances attracting suspicion would be more likely to co-operate with the gardai. This would enable them to be eliminated from the investigation at an earlier time, saving police resources which would otherwise be wasted pursuing fruitless inquiries.
This level of efficiency contrasts sharply with the one aspired to by some criminal law and criminology professors, who have called for full judicial supervision during police investigations. Furthermore, justice is not served when a suspect refuses to provide information while detained by our police force and then offers the information in court when it cannot be checked by the gardai. What may be regarded by some as a poetic, inspiring contest between the individual and the state, is no more than a flagrant evasion of moral obligations to the community.
The right to silence emerged to meet historical circumstances in the 16th and 17th centuries; the right against "self-accusation" being most closely linked to freedom of religion and speech. It was, in its origins, unquestionably the invention of those who were guilty of religious crimes, like heresy, schism, and nonconformity, and later, of political crimes, like treason, seditious libel, and breach of parliamentary privilege - more often than not, the offence was merely criticism of the government, its policies, or its officers.
The right was associated then with guilt for crimes of conscience, of belief, and of association. In the broadest sense, it was a protection not of the guilty, or of the innocent, but of freedom of expression, of political liberty and of the right to worship as one pleased.
However, the provisions of Minister O'Donoghue's Bill which refer to a restriction on a suspect's right to silence, would only apply for serious offences such as murder, manslaughter and rape. The imposition of formal sanctions for silence is unjust, but there is a difference between withholding punishment for conduct and approval of that conduct.
Although a suspect might have a right not to be imprisoned for refusing to answer, his refusal to answer should nevertheless be considered wrongful. Moreover, there is no contradiction in the presumption that a person is innocent until proven guilty and a suspect's moral duty to speak in the interest of justice.
Far from being draconian and repressive, the new proposals are quite progressive. Far from being weak and ineffective, the new proposals are extremely useful and take advantage of developments in technology. The use of video technology should guarantee the fair treatment of suspects during interviews.
The use of saliva samples for DNA testing should help to solve sexual assault cases and can also exonerate the innocent. Some concern has been expressed from the usual quarters about the proposal to classify saliva as a non-intimate sample, with views being expressed that this might go against the constitutional guarantee of bodily integrity.
Such a view is understandable. Because of its devastating implications for killers, rapists, stalkers, and terrorists, defence lawyers everywhere are fighting to diminish DNA's credibility. Genetic code, once deciphered, can break open a case and no amount of defence lawyer drivel can refute it. - Yours, etc., Raymond Tierney,
Mount Merrion, Co Dublin.