RIGHT TO SILENCE TO GO ON RANGE OF SERIOUS CRIMES

JUSTICE Minister John O'Donoghue is to significantly expand the types
of cases in which a suspect's right to silence will be curtailed, as
part of a crack down on serious crime.

The right to silence is currently only curbed in terrorist or drug
trafficking cases.

However, the Government is planning to extend this to serious criminal
cases carrying a sentence of five years or more. Suspects refusing to
answer questions in relation to murder, rape, arson, kidnapping,
assault occasioning serious bodily harm and other offences will have
this used against them at the trial stage.

As part of the crackdown, the Government is also considering extending
the detention period for suspects, increasing Garda search and arrest
powers, and removing some of the restrictions on the seizure of evidence.

Minister O'Donoghue received a report recommending the changes two
weeks ago and legislation curtailing the right to silence will be put
before the Dail early next year.

The report examines Garda proposals to extend detention hours under
Section Four of the Criminal Justice Act from the present 12-hour
maximum to a period ranging from 24 hours to four days for crimes
involving death, assault occasioning serious bodily harm, sexual
assault, kidnapping or complex fraud.

Sources said no decision had been made on the four-day period yet, but
technical changes to the period of detention would be made. For
example, under the new legislation gardai questioning a suspect for an
initial 12-hour period will be allowed to release him on police bail
before that period expires and re-arrest him for another minimum
12-hour period to consider new evidence such as forensic results. This
effectively doubles the period of detention.

The get-tough approach was initiated by the Minister when he set up a
working group to examine the proposals made in a SMI report on the
Garda Siochana last year.

This group was told to examine any constitutional complications or
legal difficulties under the European Convention on Human Rights which
might arise by curtailing the right to silence in serious criminal
cases.

"This group submitted its report two weeks ago and the Minister is
examining its proposals. The right to silence is one of a number of
issues which arose and the working group was set up in the aftermath
of that," a Department of Justice spokesman confirmed yesterday.

Under the changes a refusal or failure to answer relevant questions
put by a member of the Gardai would entitle the Judge or jury to drawn
inferences when the case comes to trial, sources said. Similar
provisions are already in place through the Offences Against the
State(amendment) Act 1998 and under the 1996 Drug Trafficking Act.

The move has been strongly criticised by the Director of the Centre
for Criminal Justice, Professor Dermot Walsh and by the Irish Council
for Civil Liberties which said miscarriages of justice could result.
Prof Walsh said it was a retrograde step and would subvert the balance
of the criminal justice system and undermine the principal that an
accused is innocent until proven guilty.

"There is no excuse for it. It will give away further rights in a
criminal justice system that has already been tilted away from the
suspect, not to mind the innocent, and give away rights without any
concomitant safeguards being introduced," Prof Walsh said.

"We have already seen major inroads into civil rights not just in the
areas of terrorism and organised crime but for other forms of crime.
To contemplate further curtailments at this point in time seems
totally unbalanced and unnecessary when crime has been falling
substantially for the past two years and this trend is set to
continue." Vice-Chairman of the ICCL, Michael Finucane, said: "We are
totally opposed to any change in the right to silence in the general
criminal law. It shifts the burden of proof on to the accused which is
unfair and possibly unconstitutional. This could lead to miscarriages
of justice."

Checked-by: Patrick Henry