72A.— (1) Where in any proceedings against a person F17[for an offence under this Part or the offence of conspiracy to murder under section 4 of the Act of 1861] evidence is given that the defendant 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, failed to answer any question material to the investigation of the offence, 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 defendant is guilty of the offence may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to the offence, but a person shall not be convicted of the offence solely or mainly on an inference drawn from such a failure.

(2) Subsection (1) shall not have effect unless—

(a) the defendant was told in ordinary language when being questioned what the effect of such a failure might be, and

(b) the defendant was afforded a reasonable opportunity to consult a solicitor before such a failure occurred.

(3) Nothing in this section shall, in any proceedings—

(a) prejudice the admissibility in evidence of the silence or other reaction of the defendant in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged, in so far as evidence thereof would be admissible apart from this section, or

(b) be taken to preclude the drawing of any inference from the silence or other reaction of the defendant which could be properly drawn apart from this section.

(4) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, an answer to the question concerned was first given by the defendant.

(5) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.

(6) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.

(7) In this section "any question material to the investigation of the offence" means:

(a) a question requesting that the defendant give a full account of his or her movements, actions, activities or associations during any specified period relevant to the offence being investigated; and

(b) whichever one, or more than one, of the following is relevant to the offence being investigated—

(i) a question relating to any statement or conduct of the type referred to in section 71A(3);

(ii) a question relating to any benefit of the type referred to in section 71A(4)(b)(i) or 71B(4)(b) which the member of the Garda Síochána concerned reasonably believes was received by the defendant or on his or her behalf;

(iii) a question relating to articles, or documents or other records, of the type referred to in section 71A(4)(b)(ii) or (5)(a);

(iv) a question relating to any document or other record of the type referred to in section 71B(4)(a)—

(I) created or purporting to be created by the defendant, or

(II) found in the possession of the defendant on or about the time of his or her arrest or found on foot of a lawful search of any premises or vehicle occupied by the defendant;

(v) a question relating to the suspected use by the defendant in a document of, or the suspected reference by him or her in a document to, a name, word, symbol or other representation of the type referred to in section 71B(4)(a)(iii);

(vi) a question relating to—

(I) the possession by the defendant, or

(II) the presence in a vehicle referred to in section 72(6)(a)(ii) and in the circumstances involving the defendant referred to in that provision,

of any article or item referred to in the Table to section 72:

provided that no question shall be regarded as being material to the investigation of the offence unless the member of the Garda Síochána concerned reasonably believed that the question related to the participation of the defendant in the commission of the offence.

(8) In this section references to a failure to answer include references to the giving of an answer that is false or misleading and references to the silence or other reaction of the defendant shall be construed accordingly.

(9) This section shall not apply in relation to a failure to answer a question if the failure occurred before the commencement of section 9 of the Criminal Justice (Amendment) Act 2009.]