Detained suspects, prepared statements and the right to silence: DPP v M [2018] IESC 21

The right to silence, or privilege against self-incrimination, which is protected by the common law, the Constitution, and the European Convention on Human Rights, requires that a jury in a criminal case should not usually be told about any failure or refusal of a detained suspect to answer garda questions or provide information to gardaí at the time of questioning. Exceptions to this general rule exist, in the form of specific statutory provisions which allow for the jury to be told about, and invited to draw inferences from, specific failures of the detainee. Outside of the circumstances delineated by statute, however, no inferences are to be drawn from an accused’s exercise of his right to silence. Indeed, no attention should generally be drawn at trial to the pre-trial exercise of the right, unless covered by the statutory inference-drawing provisions. The very practical question which arose for consideration before the Supreme Court in the 2018 case of DPP v M was whether a detained suspect who gave a prepared statement to gardaí was exercising his right to silence when he responded to subsequent garda questions by referring to the statement given and stating that he had nothing further to say, or, whether such responses should be viewed as relevant and probative evidence at trial. In this paper I outline the factual circumstances which gave rise to the case, the relevant principles and precedents which were engaged, the decisions at trial and in the Court of Appeal, along with the ultimate Supreme Court ruling. I provide some comparative context, looking specifically at the case of R v Knight from the English Court of Appeal, and I highlight some emerging patterns and practical realities of the modern criminal process. I conclude by looking to the future and to related areas of the criminal process which would benefit from clearer regulation.