Historically solicitors would advise clients in custody that there was not much to be gained by making a statement, either under caution or otherwise, when being questioned by the Gardai.
They would explain that the client could invoke the privilege against self-incrimination.
However this position has changed somewhat in the last few decades.
There has been a growing body of legislation which makes this advice more problematic as under various pieces of legislation now on the statute books it may be an offence to fail to explain certain matters or adverse inferences may be drawn against the arrested person which may later be put to a judge or jury.
Criminal Justice Act, 1984
The Criminal Justice Act, 1984 contains a number of provisions which are designed to force the arrested person to provide information to the Gardai. This can have serious consequences when someone is arrested and detained for questioning and ensures that the arrested person has a decision to make in relation to what he/she might say when being questioned.
Section 15 of the Criminal Justice Act, 1984 makes it an offence for a person not to account for a firearm in his/her possession.
Secition 16 of the Criminal Justice Act, 1984 makes it an offence for an arrested person to fail to account for any stolen property in his possession.
Section 18 of the Criminal Justice Act, 1984 obliges a person to account for any object, substance or mark on him which the Garda suspects is because of the person’s participation in an offence and Section 19 obliges a person to explain his presence in a particular location.
Both sections 18 and 19 can lead to adverse inferences being drawn against the arrested person by a judge or jury at the hearing or on preliminary examination. However a person cannot be convicted on the basis of inferences alone.
Section 18 and 19 of the Criminal Justice Act, 1984 have been amended by the Criminal Justice Act 2007 with similar consequences but the arrested person must be told by the Gardai about the effect of failing to answer questions and must be given the chance to consult with a solicitor.
The Criminal Justice Act 2007 provides additional safeguards for the arrested person; for example inferences can only be drawn there the interview has been recorded electronically.
Other acts such as the Criminal Justice (Drug Trafficking) Act 1997, the Offences against the State (Amendment) Act 1998, the Misuse of Drugs Act 1977 and 1984 and the Criminal Justice (Forensic Evidence) Act, 1990 all compel the arrested person to provide information or material.
In conclusion the old advice of “whatever you say, say nothing” may not be the best advice in all circumstances and if you find yourself in this situation you should avail of your right to consult with a solicitor.