IESC 53 · Supreme Court

THE SUPREME COURT [Appeal No. 15/2016]

[Court of Appeal Record Nos. 107/2013 and 114/2013]

Denham C.J. O’Donnell J. McKechnie J. Clarke J. O’Malley J.

Between /

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) Prosecutor/Respondent -and-

ALAN WILSON Accused/Appellant

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 13th day of July, 2017

Introduction 1. Arising out of an incident which occurred on the 3rd June, 2009, at 56 Dromheath Drive, Blanchardstown, Dublin 15, Mr. Wilson, the appellant, was arrested on suspicion of the unlawful possession of a firearm. During the course of his detention, the interviewing gardaí, by reference to this offence, invoked section 19 of the Criminal Justice Act 1984, as substituted by section 29 of the Criminal Justice Act 2007 (“section 19 of the 1984 Act”). This is a provision whereby inferences may be drawn at trial from the failure of the detained person to account for his presence at a particular place at or about the time of the commission of an offence. Subsequent to this detention he was charged with a single count of burglary contrary to section 12(1)(b) and 12(3) of the Criminal Justice (Theft and Fraud) Offences Act 2001 (“the 2001 Act”). His co-accused was alleged, on the joint indictment which followed, to have committed the same offence of burglary, and in addition was also charged with the unlawful possession of a firearm contrary to section 27A(1) of the Firearms Act 1964, as amended. Both were convicted, but it is only the situation of Mr. Wilson, who is currently serving a six-year term for that offence, with which we are concerned. 2. The point of law at issue can be simply and succinctly stated, as it was in the determination giving leave to further appeal to this Court from the decision of the Court of Appeal: it is whether section 19 of the 1984 Act may be utilised in a trial for an offence other than the offence about which the accused was questioned when the section was invoked. It is to under-describe its significance to simply state that this is a question of statutory interpretation. It is that for certainty, but within an environment which is laced with fundamental constitutional rights as these apply to an arrested and detained person, as well as to that person during the course of any subsequent trial. It thus has a general significance for the administration of the criminal justice system.

The Legal Framework – Section 19 of the Criminal Justice Act 1984 3. At the heart of this appeal is the proper construction of section 19(1) of the 1984 Act. Before describing the factual background to these proceedings, it may be helpful at this juncture to set out in full the provisions of section 19(1), as substituted by section 29 of 2007 Act. The subsection provides as follows: “19.—(1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused— (a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or (b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,

was requested by the member to account for his or her presence at a particular place at or about the time the offence is alleged to have been committed, and the member reasonably believes that the presence of the accused at that place and at that time may be attributable to his or her participation in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge's directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.” (Emphasis added) 4. The remaining subsections of sections 19 detail a number of further safeguards which must be met before its provisions can be invoked. A person shall not be convicted of an offence solely or mainly on an inference drawn under subsection (1) (section 19(2)). Subsection (1) shall not have effect unless the accused was told in ordinary language what the effect of his failure or refusal to account might be, and was informed before such failure/refusal occurred that he had the right to consult a solicitor and, save where he waived such right, was given an opportunity to exercise it (section 19(3)). Moreover, the section does not apply in relation to questioning unless it was recorded by electronic or similar means, unless the accused consents in writing to it not being so recorded. While none of these safeguards impact directly on the answer to the question certified by this Court, these subsections may have some bearing on the proper construction of section 19(1), which is the provision in issue.

Background and Procedural History Factual background 5. As above noted, the trial of the appellant and his co-accused arose out of an incident alleged to have occurred at 56 Dromheath Drive, Blanchardstown, Dublin 15 on the 3rd June, 2009. A number of statements were provided to the gardaí by the occupant of the house, a Ms. Lisa Murray. Her father, Mr. Noel Murray, who lived nearby, also furnished a statement to the gardaí. On the basis of these statements, it was the prosecution’s case that Lisa Murray had seen the appellant and the co-accused walk into the kitchen of her home and had seen the co-accused hit her boyfriend, Mr. David O’Brien, on the head with a meat clever. It was said that there was blood on Mr. O’Brien’s head after this assault. Ms. Murray had then left the house and gone to her father’s house nearby; as she left the house, she heard two shots being fired. Noel Murray heard these shots, too, after which his daughter arrived at his house screaming. Mr. Murray and his daughter then went back towards her home, where they saw the co-accused leave the house along with others; the co-accused was holding a firearm. It is of interest to note that the injured party, Mr. O’Brien, did not provide a statement to the gardaí, nor was he called as a witness at trial. 6. It was as a result of this incident that the appellant was charged, in February, 2011, with a single count of burglary. The coaccused was charged with burglary and with an offence of possession of a firearm, a shotgun, in such circumstances as to give rise to a reasonable inference that it was not in his possession for a lawful purpose. 7. Before addressing what happened at trial, it is necessary to set out the details of an interview between the investigating gardaí and the appellant, which took place at Blanchardstown Garda Station the day after the incident, the 4th June, 2009, between 20:54 and 21:20. The interviewing officer was Garda Niall Phelan, with Garda Nigel Petrie being present also. The content of the question and answer session is important as it forms the basis for the single issue of continuing relevance on this appeal. It was in this interview that the gardaí invoked section 19 of the 1984 Act, and it is based on the ‘no comment’ answers given by the appellant that the jury at his trial were asked to draw adverse inferences regarding his guilt on the burglary charge. The memorandum of interview reads as follows (corrections have been made to obvious errors in the text in aid of the reader): “Q: Do you understand why you were arrested? A: I do, yeah. Q: You have been arrested under section 30 of the Offences Against the State Act for a scheduled offence, namely, the unlawful discharge of a firearm at Dromheath Drive, Dublin 15, on 03/06/2009. Do you understand? A: Yeah. Q: Have you had an opportunity to consult with your solicitor? A: On the inferences thing, yeah. Q: Are you satisfied that you have received the necessary legal advice in relation to our intention to invoke inferences? A: Yeah, but I don’t fully understand the details but I’ve a fair idea. Q: Do you wish to further consult your solicitor? A: No. Q: I now wish to formally invoke section 19 of the CJA 84 as amended by section 29 of the CJA 2007. I will now formally read out the section of the Act to you… [the relevant section was read to the appellant]. I will now explain to you in ordinary language the question that I wish to ask you. I am now requesting that you account for your presence in particular places on 3rd June 2009 as follows: That you were on Dromheath Drive, Mulhuddart, Dublin 15, and in particular the vicinity of no 56 Dromheath Drive, on the evening of Wednesday 3rd June 2009 at or around 7:45pm, that you entered no 56 Dromheath Drive without the permission of the owner, that you entered this location in the company of David Crowley and while there engaged in an altercation with the occupants therein. That while at this location you were present when a firearm was discharged, that you then left Dromheath Drive in a silver Toyota corolla, registration 00WX4970 in the company of Fergus O’Hanlon, David Crowley and Noel Cahill, that you then travelled via Church Road, Mulhuddart, arriving there at approximately 7:50pm, where you were subsequently arrested at old Navan road. I reasonably believe that your presence at these places was to participate in and carry out the unlawful discharge of a firearm at 56 Dromheath Drive, Mulhuddart, Dublin 15. In plain language this section of the Act means that if you do not answer the questions that I asked you concerning your presence at Dromheath Drive, Dublin 15 56 Dromheath Drive, Dublin 15 Church Road, Mulhuddart, Dublin 15 Old Navan road, Mulhuddart, Dublin 15 And I reasonably believe that your presence in these places was to participate in and carry out the unlawful discharge of a firearm at 56 Dromheath Drive, D15 on 3rd June 2009, then a judge can take this failure or refusal into account [in determining] whether a charge should be dismissed [or] whether you have a case to answer and a judge [or] jury [can] take into account your failure or refusal to answer this question in deciding if you are guilty of the offence. Your failure or refusal can be used to support other evidence being put forward but failure or refusal on its own will not convict you of an offence. Do you understand that? A: Yeah

Q: Are you sure? A: Yeah Q: Do you wish to give an answer to the question I have posed? A: I have nothing to say. Q: Do you wish to clarify anything you have said or do you wish to add anything? A: I wish to add that I was pulled over by Gardaí on a road in Blanchardstown. I do not know the name of the road. That’s it. Q: Do you wish to clarify or add anything? A: No.” (Emphasis added)

Trial in the Circuit Criminal Court 8. The appellant and his co-accused were tried jointly in the Dublin Circuit Criminal Court. His Honour Judge Desmond Hogan was the trial judge. As part of the prosecution case, the DPP tendered evidence that the appellant had failed to answer the above questions put to him in interview by the gardaí. This evidence was in the form of the fourth memorandum of interview with the appellant, which was tendered as a prosecution exhibit. The purpose of tendering this evidence was to enable the jury to draw inferences of guilt, pursuant to section 19 of the 1984 Act, from the appellant’s refusal to answer the questions regarding his presence at the specified locations relevant to the crime. 9. The appellant objected to the admissibility of the memorandum of interview. The basis for this objection was that the appellant was not being questioned in relation to a burglary during the course of the relevant interview, but rather with a firearms offence and that he has never been charged with a firearms offence. His submission, therefore, was that the ‘no comment’ answers were inadmissible in respect of the burglary offence. This same principal argument against the admissibility of the memorandum was advanced before the Court of Appeal and again forms the core of the appellant’s appeal to this Court. The trial judge, though acknowledging that the appellant’s application was an “interesting” and “proper” one, ruled as follows: “Now, it appears to me that when a person … is arrested and is lawfully detained that the gardaí can question an accused on matters that are peripheral but relevant to what an accused person has been arrested for and that they can do that prior to an accused person being charged with a particular offence and in short it appears to me that a person having been arrested, properly detained for a particular offence, are allowed latitude in questioning an accused person as to matters that may be peripheral or relevant to the offence for which he was originally charged. Now, it appears to me that such a request which I’ve just read out from the memorandum of interview is within those parameters, particularly it appears to me that such a request [concerned] matters that could at that point be considered to be possible arrestable offences, namely, ‘That on or about 7.45 pm that you entered No. 56 Dromheath Drive without the permission of the owner, that you entered this location in the company of [the coaccused] and while there engaged in an altercation with the occupants therein, that while in this location you were present when a firearm was discharged and that you left Dromheath Drive in a silver Toyota Corolla,’ et cetera, et cetera. Now, it appears to me that it was proper that they should be put and of course because a person or an accused person may be arrested under one offence it doesn’t preclude that he be charged with another offence arising from circumstances that may arise from interview or otherwise or from circumstances which other evidence subsequently obtained might dictate he should be charged for. So having regard to that, what I’ve just said, and just I should also bear in mind of course that section 30 while a scheduled offence is also an arrestable offence. So for that reason, Mr Dwyer, I do not accede to your application.” (Emphasis added). 10. Ultimately, the appellant was convicted on the burglary charge and received a sentence of seven years’ imprisonment. The coaccused was convicted of burglary and also of the firearms offence above described. He received concurrent sentences of imprisonment of seven years for the former and eight years for the latter. Judgment of the Court of Appeal 11. The appellant and his co-accused appealed their convictions to the Court of Appeal. They raised a number of grounds of appeal; the only ground of continuing relevance to this appeal was that related to the drawing of adverse inferences pursuant to section 19 of the 1984 Act. The Court’s judgment was delivered by Birmingham J. (Ryan P. and Edwards J. concurring) on the 5th November, 2015 ([2015] I.E.C.A. 275). As regards the trial judge’s ruling on the matter, Birmingham J. stated at paragraph 45 of his judgment that “[i]n referring to peripheral matters, the trial judge went further, considerably further, than he needed to.” The learned judge then continued: “In the context of what happened at Drumheath Drive, the offences of possession of a firearm, involving the discharge of a firearm, and burglary are inextricably linked. There was no question of the prosecution seeking to invoke the statutory provisions by piggy-backing an offence other than the one with which he has been charged. Still less is there any question in the original arrest pursuant to s. 30 of the Offences Against the State Act operating as a colourable device.” (Emphasis added). 12. The Court went on to refer to the cases of DPP v. Liam Bolger (No. 1) [2013] I.E.C.C.A. 6 (“Bolger (No. 1)”) and DPP v. Liam Bolger [2014] I.E.C.C.A. 1 (“Bolger (No. 2)”). Birmingham J. was satisfied that in those judgments the Court of Criminal Appeal had expressed a clear view that evidence giving rise to the drawing of adverse inferences was admissible “in a situation where the accused had been arrested for offences of possession of firearms, but charged and convicted with the offence of murder.” Accordingly, this and the appellants’ other grounds of appeal were dismissed.

13. Though not material to the within appeal, it should be noted that Mr. Wilson was successful in his appeal against the severity of his sentence, with the Court of Appeal reducing the sentence imposed by the Circuit Court by one year ([2015] I.E.C.A. 364).

Appeal to this Court 14. By determination dated the 3rd June, 2016 ([2016] IESC DET. 47), this Court determined that the appellant had raised a point of general public importance as to the proper interpretation of section 19 of the 1984 Act, as amended. Leave to appeal was granted on the single issue of whether the section may be utilised in a trial for an offence other than the offence about which the accused was questioned when the section was invoked.

Submissions 15. The Court was greatly aided by able written and oral submissions by counsel for both parties. The substance of those submissions is dealt with below.

Discussion/Decision The Right to Silence 16. The right to silence and the privilege against self-incrimination are common law and constitutional aspects of the same coin. These rights are historical in establishment, are demanded in a democratic society, and are cherished by those who support the rule of law. Whilst there remains much debate about the genesis of this privilege at common law, all acknowledge its antiquity, running back for several centuries, or indeed even longer. Many commentators have traced its origin to at least the 17th Century; others suggest that the maxim nemo tenetur prodere se ipsum can be traced back to medieval canon law and the European ius commune (Langbein, The Origins of the Adversarial Criminal Trial (OUP, 2003), p. 278 and Jackson & Somers, The Internationalisation of Criminal Evidence (CUP, 2012), p. 241). For a judicial perspective on the historical development of this right, see Re National Irish Bank Limited (No.1) [1999] 3 I.R. 169 at 173.

17. From a constitutional perspective it is perhaps somewhat surprising that this foundational right was not pitched at the highest level of our legal order until 1994. It was, however, recognised in The State (McCarthy) v. Lennon & Ors [1936] I.R. 485 that “by virtue of the provisions of Article 73 of the Constitution of the Irish Free State, the common law right to silence had continued as part of the law of the Irish Free State” (per Fitzgibbon J.). In Heaney & Anor v. Ireland & Anor [1996] 1 I.R. 580, its status at constitutional level was expressly acknowledged by both the High Court and the Supreme Court. Costello J. felt that it was to be found in Article 38.1, whilst the Supreme Court expressly reserved its view on that point, preferring instead in the context of that case to describe the right as being a “corollary” to the freedom of expression provision, which of course is situated in Article 40.6 of the Constitution. In Director of Public Prosecutions v A McD [2017] 1 I.L.R.M. 176, this Court held in a situation similar to that arising in the instant case that the privilege is part of the right to a fair trial under Article 38.1 of the Constitution. Again, however, the Court expressly reserved its view as to where in other circumstances it might be positioned. Context might influence, if not determine, its resting place in any given case. However, for factual purposes, the real point is simply that the right to silence now has both a common law presence and a constitutional existence within the state. 18. Antecedent to any constitutional framework, once society became regulated in any type of structured order, liberty of the subject was rarely divorced from the security of the person. Rights as fundamental as the preservation of life, of bodily freedom, of unrestricted movement and of the ownership of goods would account for little if miscreants could not be compelled to respect their exercise. Accordingly, measures to that end have progressively found their way onto the statute books over the years, with the Criminal Justice Act 1984 (“the 1984 Act”) being a significant piece of legislation on the criminal side.

The Criminal Justice Act 1984 19. The 1984 Act contained a significant number of new provisions, all said to be necessary for the control of crime and in the pursuit of criminals. The legislation contained many novel features; for present purposes, one of the most significant changes was the conferring on the gardaí, for the first time, of a general power to detain for the purposes of investigating crime. Prior to that there existed section 30 of the Offences Against the State Act 1939, but the powers thereunder were circumscribed by the limited number of offences to which the section applied. Accordingly, in 1984, for the first time a power was given to detain and interrogate a person, after arrest, in respect of a crime for a certain period, which could be extended (see, inter alia, section 4 of the 1984 Act). That power, the period involved and the crimes in respect of which questioning could be asked have all been increased, extended and expanded in the intervening period. It is not, however, that provision which is of direct interest to us, but rather the matter following. Adverse Inference Provisions 20. A further noteworthy element of the package of reforms introduced by the 1984 Act lay in the ‘adverse inference’ provisions of sections 18 and 19 thereof. While it would be well overstating the mark to say that the right to silence had hitherto been absolute or unconditional (see p. 587 of the Report in Heaney v. Ireland, where several exceptions are referred to), these provisions were nonetheless critically significant as an encroachment on the right to silence. Whilst previously one had section 52 of the 1939 Act, the same was restricted in scope. Now for the first time there existed general provisions of widespread application piercing the privilege protection in the criminal justice system. 21. Broadly speaking, section 18(1) of the 1984 Act permits for inferences to be drawn from an accused person’s failure to account for any object, substance or mark, or any mark on any such object, that was on his or her person, in or on his or her clothing or footwear, otherwise in his or her possession, or in any place in which he or she was during any specified period. Section 19(1) of the Act permits the drawing of inferences from the accused’s failure to account for his or her presence at a particular place at or about the time the charged offence is alleged to have been committed. Save in respect of this difference in subject matter, the sections are otherwise identical in wording, in structure and in their operation. It appears that these sections, as originally enacted, were seldom used by the gardaí (see the judgment of O’Donnell J. for the Court of Criminal Appeal in The People (DPP) v. Fitzpatrick [2012] 3 I.R. 656 at para. 35). This fact, however, should not detract from the overall importance of the introduction of these provisions; by making this incursion into the right to silence, they laid the foundation for the indelible alteration of the exercise of that right in this jurisdiction. 22. The original sections 18 and 19 of the 1984 Act were substituted by sections 28 and 29 of the Criminal Justice Act 2007 (“the 2007 Act”), respectively. Although these changes were highly significant and appear to have heralded a marked change in the frequency of the invocation of the provisions by investigating gardaí, the overarching purpose of the provisions remains as just described. 23. Another important change effected by the 2007 Act was the insertion, by section 30 thereof, of section 19A of the 1984 Act. This section allows for the drawing of inferences where an accused failed at an earlier time, such as before or on being charged or while being interrogated, to mention any fact subsequently relied on in his defence, being a fact which in the circumstances existing at the time clearly called for an explanation. This section is widely regarded as a legislative response to this Court’s decision in The People (DPP) v. Finnerty [1999] 4 I.R. 364 (“Finnerty”). It is potentially much broader in scope than sections 18 and 19 of the Act, and shifts the entire obligation onto a detained person to recall and disclose any fact covered by the section during his interrogation, and does not require any request for an account to have been made during questioning or otherwise, although the section will not have effect unless the accused was told in ordinary language at the relevant time what the effect of the failure to mention a fact to which the section applies might be (section 19A(3)). A thorough analysis of this provision is not called for on the facts of this case; it will suffice to say that although it shares certain elements with sections 18 and 19 of the 1984 Act, it also differs from them in significant ways. In some respects, therefore, that section will require to be separately treated when an appropriate case arises. It should also be noted that Schedule 1 to the 2007 Act repealed section 7 of the Criminal Justice (Drug Trafficking) Act 1996 and section 5 of the Offences Against the State (Amendment) Act 1998; both sections pertained to the failure of the accused to mention particular facts later relied upon in their defence. Section 19A has the same effect, and is simply of wider import. The Proper Interpretation of Section 19 24. Given that both the 1984 Act and the 2007 Act are, self-evidently, criminal statutes, the proper approach to their interpretation must be a strict one. However, such an approach is not in any way critical to the ordinary meaning of the sections as I see it. Nonetheless it is important to be mindful at a general level of the manner in which the relevant provisions should be interpreted. This is all the more so given the above-described constitutional backdrop against which sections 18 and 19 of the 1984 Act must be read, and the undoubted impact they can have on the fundamental guarantee that is the right to silence. As pointed out by Keane J. at p. 380 of the report in Finnerty, “the right of suspects in custody to remain silent, recognised by the common law, is also a constitutional right and the provisions of the Act of 1984 must be construed accordingly.” 25. As is evident from the terms of section 19(1) of the 1984 Act, there are a number of sequential elements involved in the invocation of the section. These can very briefly be described as follows: i. The gateway – to the use of the section is that the proceedings relate to an arrestable offence, as defined in section 2 of the Criminal Law Act 1997, as amended; if not, it can have no application. Once the arrest is so related, neither the fact of the arrest, nor the offence the subject thereof, are in themselves of continuing relevance; ii. The timing requirement – by which I mean the three distinct occasions on which a member of the Garda Síochaná may invoke the section: a) at any time before charge, on being questioned by a member; b) when being charged; or c) when being informed by the member that he might be prosecuted for it;

iii. The request – by the member to the accused to account for his presence at a particular place at or about the time the offence is alleged to have been committed; iv. The justification – the member must reasonably believe and so inform the accused that his presence at the said place and at the said time may be attributable to his participation in the offence. Absent such belief, the provision cannot be invoked; v. The failure to account – the failure or refusal to give an account, which is called for in the circumstances, is the link between the steps above mentioned and what follows; vi. The consequences – by reason of such failure or refusal, such inferences as appear proper may be drawn by the court in determining i) whether a charge should be dismissed or ii) whether there is a case to answer; or iii) by the court or jury in determining whether the accused is guilty of the offence charged or of any other offence of which he or she could lawfully be convicted on that charge; and, finally, vii. The effect – such failure or refusal may corroborate other evidence in respect of which the failure or refusal is material. 26. Pursuant to section 19(2), a person shall not be convicted of an offence solely or mainly on an inference drawn under subsection (1). The requirements contained in the other subsections of section 19, which are above referred to, must of course also be complied with. This breakdown is applicable mutatis mutandis to section 18 of the 1984 Act. 27. Finally, it is worth noting that the proper interpretation of the clauses relating to the accused’s failure or refusal to give an account, “being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned”, was the subject of a recent decision of this Court in The People (Director of Public Prosecutions) v. A McD [2016] 3 I.R. 123; see, in particular, paragraphs 99-111 thereof. 28. The rationale behind the introduction of these provisions was that the exercise of the right to silence might unfairly impact on the gardaí’s ability to fully and effectively investigate crime and thus either prevent the bringing of or else prejudice the prosecution’s case, in that a suspect could hide behind that right even in the face of circumstances that clearly called for an explanation. In this sense sections 18 and 19 of the 1984 Act potentially serve a dual purpose from the prosecution’s perspective. On the one hand, the invocation of the section during questioning (or upon charge etc.) may serve to loosen the suspect’s tongue and convince him to depart from what he might otherwise perceive as the safe course of remaining silent. If such should result, there may never be any need to rely on the section, as, subject to voluntariness etc., whatever he might say may be admissible at trial. On the other hand, should the suspect choose to remain silent, he risks that very fact becoming corroborative evidence against him. Depending on the particular circumstances calling for an account, the nature of the judge’s charge, in particular as it relates to the possible range of inferences which may be drawn, and certain other matters, the suspect’s silence may weigh heavily against him. The quandary facing the suspect in such circumstances is obvious. Whichever course he may choose to follow, the prosecution can expect its hand to be strengthened. Even with the provision of legal advice, which is a requirement if the sections are to be operated, the detained person is faced with a critical choice, one which may be determinative of the outcome at trial. 29. The adverse inference provisions are of course subject to the cardinal rule that only relevant evidence is admissible. That which cannot be so described is of no value to the prosecution and is of no consequence to the accused person. From the former’s point of view what it seeks to further is the offence on which the accused person stands charged before the court of trial. It has no interest in and could not adduce evidence which is unrelated to that charge. The drawing of inferences can of course be regarded as evidence. Likewise, from a detained/accused person’s point of view, he is at risk of being convicted of that offence, but, subject to a caveat later mentioned, not on any other charge. It is therefore critical from the DPP’s point of view that section 19 is applied in such a manner that it directly relates to the charged offence, in this case, being one of burglary. Equally so, unless that is the case, the accused person is not at risk of suffering adverse consequences.

30. As above expressed, the restriction on the constitutional right to silence can be justified by reference to society’s interest in the investigation of crime, and in its successful prosecution in court. Without the safeguards contained in the legislation, it could not be said that the relevant provisions are constitutionally compliant. Indeed, such safeguards played a key role in this Court’s judgment in Rock v. Ireland, where, by reference to the grounds advanced in that case, it held that sections 18 and 19 of the 1984 Act were not unconstitutional. 31. In the constitutional environment within which the restrictions on the right to silence were made, it would highly curious at the level of principle if section 19 could be invoked in respect of an offence with which the accused person was not charged. If that was the case, the carefully structured safeguards would have no value in respect of the questioned offence, which must carry a sentence of at least five years. For example, the right to consult a lawyer would be utterly hollow: giving advice on an offence which his client was not ultimately on risk of would be useless. More significantly, being unable to give advice on the charge in the indictment would have the same effect as if the safeguards were not within the statutory provisions at all. That would have very serious implications for the surviving viability of these provisions. In my view, however, there is no concern in this regard when the section is properly understood. 32. Focusing in on section 19(1) of the 1984 Act, it is quite clear from its provisions that the sequential steps which are above set out can relate only to the offence or offences with which the accused person is charged. The definite article is used on more than seven occasions, as I have emphasised when setting out the section at para. 3, supra. The section can only apply in relation to proceedings against a person “for an arrestable offence”. Subsections (1)(a) and (b) list different occasions on which a member of the gardaí may invoke the section. In the instant case it appears to have been invoked during questioning (subsection (1)(a)) and so I will conduct my analysis through that prism, though the same applies in relation to (1)(b). Subsection (1)(a) provides that the request to account may be made prior to charge during questioning by a member of the gardaí in relation to the offence. This must be a reference back to the arrestable offence referred to in the introductory line of section 19(1). Therefore the section in question is predicated on the request being made while the person is being questioned in relation to the offence with which he was subsequently charged and proceeded against. This must, in my view, refer to questioning in relation to the identified arrestable offence itself, rather than simply to questioning on the underlying facts which could give rise to charges on any one of a number of arrestable offences. I therefore cannot accept the submission that any common factual nexus between the crime in respect of which the accused was questioned, and the crime subsequently charged, is sufficient for the DPP to rely upon the section at trial. Had the Oireachtas wished, it could have provided that the section may be utilised in trials for any offence arising out of the facts about which the accused person was questioned and failed to account; however, it did not do so. 33. It follows that inferences can be drawn at trial only where the section was invoked during questioning in respect of the same offence with which the accused was subsequently charged. This, in my view, is the natural and ordinary meaning of the words in question, which must of course be read strictly given the penal nature of the section. The right to silence and the privilege against self-incrimination are enshrined at the highest level of our legal order and the Constitution will not abide any greater encroachment thereon than the words of the section expressly and unambiguously sanction. This interpretation is also consistent with according constitutional fairness of procedures to the suspect. One can readily appreciate, for example, the complaint that might validly be made if a person remained silent during questioning said to relate to a relatively minor offence (albeit that it would have to be an arrestable offence), only to then have that silence used against him at trial in relation to an altogether more serious offence. Serious questions of constitutional propriety could well arise if such were permissible. 34. Here, the appellant was questioned in relation to a firearms charge, not a charge of burglary. It is worth observing that the procedure for invoking the adverse inference provision in respect of the firearms offence was scrupulously followed, but that is beside the point because he was never charged with that offence. In my view, in order for adverse inferences to be drawn from the appellant’s silence during questioning, that questioning would have had to relate to the crime with which he was charged, i.e. burglary. It was not appropriate to invoke those inference provisions in respect of the firearms offence yet seek to use his silence against him in a trial on a burglary charge, which offence was never formally put to him, or even mentioned, during questioning. 35. If there was any doubt in this regard, it is entirely removed by that part of subsection (1) which refers to the use of such inferences when the Court, inter alia, is “determining whether the accused is guilty of the offence charged”. In my view, this permits of one meaning only. Furthermore, I cannot see any scope within the section for expanding its meaning to cover other offences, whether described as “inextricably linked” or otherwise. In fact the Oireachtas has considered this matter, which is evident from that part of the section which immediately follows the last quotation. This has the effect that the section may be applied not only to the offence as charged, but to “any other offence of which he or she could lawfully be convicted on that charge”. In other words, convicted of what I will call, for short, a “lesser offence” of the same type, an example of which would be where a person is charged with assault causing harm but is convicted of simple assault. This type of statutory language is common within criminal legislation but is entirely unrelated to any possible suggestion that one could be found guilty of burglary on a firearms charge. Both are entirely unrelated in a legal sense, even if the facts and circumstances of a given case may be common to both. Therefore I am perfectly satisfied that the inference provision can only be invoked, and thus only applied, in respect of the offence subsequently preferred against the accused person. 36. Returning to the judgments of the courts below, it is unclear what the trial judge had in mind when ruling as he did. Even disregarding the “peripheral but relevant” remark for a moment, he seems to have related the pertinent questioning, in one place, to the offence for which the accused person was arrested, and in another place to the offence charged. The former could not be correct, nor can I agree with the contention that the necessary link can be established by reference to the justification as outlined by the trial judge in his ruling (see para. 10, supra).

37. The Court of Appeal’s treatment of this issue is succinctly set out at paragraph 45 of its judgment, which, for ease of reference, I have set out above. As is apparent from my reading of the section, I can see no justification for the concept of offences “being inextricably linked” and thus in that manner enabling the section to be invoked. Such an approach would set aside the effectiveness of the safeguards and would potentially have serious consequences for the section itself. In any event, the clear wording of section 19 of the 1984 Act does not permit such an interpretation. Whilst both the firearm and burglary offences arise out of the same set of circumstances in this case, it could not be said, even with the approach as adopted, that both are legally linked. Quite evidently they are not.

The People (DPP) v. Bolger (No.1) [2013] IECCA 6 and (No. 2) [2014] IECCA 1 38. For the reasons that I am about to express, I do not consider that the Bolger judgments are of any great assistance in relation to the question certified by the Court. It is also unclear how the Court of Appeal could have relied upon these decisions as supporting the approach adopted. Whatever issues can be said to have been central to those judgments, and whether and to what extent they were addressed by the Court of Criminal Appeal on the original leave application, they did not cover the precise point directly in issue in this case. Consequently, it cannot be said that they offer any support for either the judgment of the Court of Appeal or for the DPP’s continuing submissions in this respect.

39. In Bolger, the applicant was convicted on the 17th November, 2009, at the Central Criminal Court (Carney J.), of the murder of one Christopher Barry, for which he received the mandatory sentence of life imprisonment. It was found by the jury that although the applicant was not the one who shot the victim, he shared equal responsibility because he drove the gunman away from the scene. He brought an application for leave to appeal his conviction.

40. The first judgment of the Court of Criminal Appeal was delivered by Denham C.J. (de Valera and McGovern JJ. concurring) on the 14th March, 2013. Five issues are addressed in the judgment of the Court, with the third such issue (referred to as “the inference from silence issue”) being the only one of relevance for present purposes. The applicant argued that the trial judge had erred in allowing the admission into evidence of a memorandum of an interview conducted with him whilst in Garda custody, during which interview sections 18 and 19 of the 1984 Act had been invoked. He also submitted that the trial judge had erred in relation to his charge and re-charge to the jury on the issue of drawing inferences from his silence during these interviews.

41. Mr. Bolger had been arrested by a Detective Sergeant Gary Kelly, who informed him that he was being arrested under the provisions of section 30 of the Offences Against the State Act 1939, as amended. He was given a legal caution and it was explained that it related to the unlawful possession of firearms where Mr. Barry was murdered at Killester Avenue, Donnycarney, Dublin City. As further set out in the judgment of the appellate Court:

“The unlawful possession of a firearm for which the applicant was arrested enabled the members of the gardaí to question the applicant for other related offences, provided the arrest was not a contrivance or a device for that related questioning. In this case, the applicant was arrested for an arrestable offence, and murder is a related arrestable offence. The arrest was not a colourable device, and thus the gardaí were entitled to question the applicant in relation to the murder. In this case the applicant was arrested for the unlawful possession of a firearm used in the murder of Christopher Barry.” (para. 40) 42. Mr. Bolger was given an opportunity to consult his solicitor and was advised in relation to sections 18, 19 and 19A of the 1984 Act. All of the other necessary procedural safeguards were adhered to. The relevant questions that were put to the applicant during his questioning, in respect of which the adverse inference provisions were invoked, are recorded at paragraph 43 of the judgment of the Court of Criminal Appeal. If I may be forgiven the extensive quotation, they were as follows:

“Question: In accordance [with section 18 of the 1984 Act], I want to ask you about your Renault Kangoo van registration No. 03 MH 3275. How long have you had this van? Answer: About six months.

Question: Where did you go to in this van last Saturday when you left the Cuckoo’s Nest? Answer: This is a very serious case and I have been advised by my solicitor not to say anything in case I get into trouble.

… Question: Did you loan that van to anyone?

Answer: I have been advised to say ‘no comment’; I don’t mean to be rude. Question: It is our brief this van was used in the murder of Christopher Barry last Saturday, where he was shot a number of times with a firearm, and you are being asked to account for this van last Saturday between 1.40 p.m. and 4 p.m.? Answer: I have been advised at this time [that it is in] my best interest to say ‘no comment’. I don't mean to be rude. Question: You understand that inferences may be drawn [from] your refusal to account for this Renault Kangoo van?

Answer: Yes. Question: I believe you drove this van to Killester last Saturday and you are heavily involved in the murder of Christopher Barry. Are you refusing to account for your Renault van last Saturday the 13th of September?

Answer: At this stage it is my best interest to say ‘no comment’. …

Question: Your Renault Kangoo van was observed by a witness in the immediate vicinity of Byrne’s Bookmakers, Killester, at approximately 3 pm last Saturday. You have been asked to account for this van in Killester last Saturday?

Answer: At this stage in the investigation, I have been advised to say ‘no comment’. …

Question: Also under [section 18], I want to question you in relation to the damage to your Kangoo van, 03 MH 3275. You have viewed CCTV footage of the Cuckoo’s Nest last Saturday where it is visible that there is no damage to the door of the van. You have now been asked to account for the damage to your van?

Answer: No comment. Question: Why did you lie to the guards when you said this damage happened prior to last Saturday?

Answer: No comment. Question: You viewed the footage for time approximately 1.40 at the Cuckoo’s Nest and there was no damage. And when you were stopped by the gardaí at 4.30 pm there was damage. How did this damage happen?

Answer: No comment. Question: You do understand that refusing to answer questions about the damage to the van is a failure or refusal?

Answer: At this stage I have been advised to say ‘no comment’.” 43. The learned trial judge was satisfied that Mr. Bolger had understood the situation, that it was properly explained to him, and that the other requirements of the section had been followed. He thus ruled that the adverse inference provisions could be operated against the applicant. Denham C.J., on appeal, was satisfied that the trial judge had applied the appropriate standard of proof in ruling to admit the memorandum of interview and that he was also correct in his rulings on the admissibility of the memorandum and the question of compliance with the statutory requirements of section 18. Thus the Court was satisfied that the evidence was properly admitted and dismissed this aspect of his appeal. All other grounds being similarly dismissed, the Court refused the application for leave to appeal. 44. The applicant subsequently issued a motion seeking an order setting aside the judgment of the 14th March, 2013, or, alternatively, an order for a re-hearing of the appeal. He argued that some of the grounds of appeal raised, including those relating to adverse inferences, in particular as concerning the charge and, following requisition, re-charge to the jury, had not been addressed, adequately or at all, by the Court. 45. The second judgment of the Court was delivered by Denham C.J. (de Valera and McGovern JJ. concurring) on the 23rd January, 2014. Although finding that the Court did not have jurisdiction to set aside its first judgment, which was final, the Chief Justice, out of an abundance of caution, nevertheless decided to hear the legal arguments that were raised on the application. 46. The Court acknowledged that elements of some of the grounds of appeal originally raised were not all subject to exposition in the first judgment: it is not necessary in a judgment to determine each and every ground raised, or all of the aspects of each and every ground. The Court recalled that counsel had originally stated that the gravamen of this particular objection was that the gardaí had not explained to his client the nature of the inference provisions. Thus at the core of the ‘adverse inferences’ ground was the admissibility of the evidence, and the Court had determined it to be admissible. At the second hearing counsel had accepted that the gardaí could pose questions on issues other than the firearms matter. Although the first decision of the Court had determined the fundamental ‘inferences’ issue, it nonetheless took the opportunity to confirm its view on the issues of the caution, charge and recharge. Having done so, Denham C.J. was satisfied that there had been no error by the learned trial judge and that the applicant’s application for leave had been correctly refused.

47. In the instant case the DPP submits that the Bolger decisions are directly relevant to the issue before the Court. Although such argument found favour with the Court of Appeal, I must respectfully disagree. First, although the second judgment of the Court of Criminal Appeal does record some submissions made on behalf of Mr. Bolger which bear a resemblance to those argued by Mr. Wilson, it is clear that the precise point raised on this appeal was not directly addressed by the Court of Criminal Appeal in that case. The judgments of that court were concerned primarily with the admissibility of the memoranda of interview at a general level, that is to say, with whether the statutory requirements had been fulfilled and the essential safeguards respected. Moreover, the critical point in the second judgment, dealing with the charge and re-charge to the jury in relation to adverse inferences, is not relevant to the precise point of statutory construction under consideration in this judgment.

48. More fundamental, however, is what I see as a key distinction between both cases. In Bolger, the applicant was arrested under section 30 of the 1939 Act on suspicion of the unlawful possession of a firearm at the location where a murder had taken place. The gardaí are entitled to question a person arrested and detained under section 30 in relation to an offence other than that for which he was arrested, provided that the permission of the member-in-charge has been obtained (see section 30(3A)). Mr. Bolger was then questioned in relation to his involvement in the murder. Section 18 of the 1984 Act was invoked in respect of his van and his involvement in the murder. He was subsequently prosecuted for murder. I reject the respondent’s submission that Bolger was not in fact questioned in relation to murder, but rather in relation to the firearms offence only. It was put to him that he was “heavily involved” in the murder, and the link between the van and the murder was expressly mentioned on another occasion also. It cannot but have been known to Mr. Bolger that he was being questioned in relation to the offence of murder. Moreover the Court of Criminal Appeal accepted that he was questioned in relation to murder and its judgments proceeded on that basis. 49. In this case, on the other hand, the appellant was arrested under section 30 of the 1939 Act on suspicion of his involvement in an offence involving the discharge of a firearm. He was questioned in relation to a firearms offence and section 19 of the 1984 Act was expressly invoked in respect of a firearms offence. He was then charged with a different offence, burglary. 50. It is true that the cases have in common the fact that Mr. Bolger and Mr. Wilson were arrested in respect of firearms offences but ultimately charged with other offences – murder and burglary, respectively. However, what is critical is the difference in what happened at interview in the two cases. Bolger was arrested in relation to one offence, but then questioned on (and had the inference provisions invoked at interview in respect of) another offence, with which he was ultimately charged. Wilson, on the other hand, was arrested, questioned and had the inferences provisions invoked in respect of one offence, but he was then charged with another offence. As far as the inference provisions are concerned, arresting someone under section 30 for one offence, but then questioning and charging them in relation to another, is quite a different thing to arresting and questioning them on one offence, but then charging another. While the former approach is permissible in certain circumstances (e.g. when there is statutory authority, as there is pursuant to section 30(3A) of the 1939 Act), the latter is not: adverse inferences may only be drawn in respect of questioning on the offence which was subsequently charged. This is what happened in the Bolger case, but not in this one. No issue could have been taken by Mr. Wilson had he been arrested under section 30 in relation to the firearms offence, but then questioned about and charged with another related offence (e.g. the burglary) and inferences were then drawn at his trial concerning his failure to answer questions relating to that charged offence.

51. On that point, the DPP has argued that the questioning in the instant case did in fact relate to the burglary charge also, and thus that when the adverse inference provisions were invoked, the appellant was, at all times, being questioned “in relation to the offence” with which he was ultimately charged. She submits that the offences in question were inextricably linked, being so intimately connected that to distinguish the two on this issue would be unjustified. It is said that the relationship between the two arrestable offences is so close that to distinguish between them and exclude the inferences evidence in respect of the burglary charge would constitute an overly narrow construction of the legislation in the particular circumstances of this case. Moreover she does not accept that the adverse inference provisions were directed to the principal assertion that the appellant was involved in a firearms offence, but were in fact directed towards the detail of what had happened at 56 Dromheath Drive, which included a burglary involving an assault and an unlawful discharge of a firearm. 52. I must reject these submissions also. As previously stated, the inference provisions may only be invoked in respect of questioning which relates to the offence ultimately charged. Unlike Bolger, where express reference was made during interview to his involvement in murder, in this case the memorandum of interview does not contain a single reference to Mr. Wilson’s involvement in a burglary. It is true that a lawyer considering the scenario would have surmised that the underlying facts could give rise to a burglary charge, but then there are a great deal of charges, of greater and lesser seriousness, that could have sprung from such facts. What is significant is what the suspect person was questioned about. From the run of the interview that was conducted, there was simply no way for the appellant to know that he would be charged with burglary; in such circumstances any legal advice he may have taken on the inferences issue could well have been negated. A person may understandably keep his silence when questioned in relation to one offence, but might venture an explanation if the same facts were legally characterised in a different way.

53. Moreover, at a legal level, the offences are not inextricably linked, as claimed. The indictment records that the appellant was charged with burglary contrary to section 12(1)(b) and 12(3) of the 2001 Act, with the particulars being that he “did enter as a trespasser the building known as … and did commit an arrestable offence therein to wit, assault causing harm”. Thus he was charged with burglary involving the carrying out of an assault, but, as the Chief Justice has noted, there was no evidence that the gun was produced or discharged during this assault. Therefore the only common link between the offences is the shared underlying facts but, as I have stated, that alone is not sufficient. Mr. Wilson was not questioned about a burglary; it was not put to him that he was involved in a burglary, or that inferences could be drawn in relation to his failure to answers questions concerning his presence at locations relevant to a burglary. Therefore it was not permissible to draw inferences at his trial for burglary from his silence during questioning related to another offence.

54. Accordingly, I do not see that the Bolger decisions can assist the respondent, nor am I persuaded by the other submissions made on her behalf.

Conclusion 55. For the above reasons, therefore, I would answer the certified question by saying that the inference provisions can only be relied upon at trial where the offence charged is the same as that in relation to which the accused was questioned when the section was invoked. Accordingly, I would allow the appeal and quash the appellant’s conviction.