Criminal Justice Act 2007

31.

Amendment of section 2 of Offences Against the State (Amendment) Act 1998.

31.— (1) Section 2 of the Offences Against the State (Amendment) Act 1998 is amended—

( a) in subsection (1), by—

(i) the substitution of “in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967” for “in determining whether to send forward the accused for trial”, and

(ii) the substitution of “a person shall not be convicted of the offence solely or mainly on an inference drawn from such a failure” for “a person shall not be convicted of the offence solely on an inference drawn from such a failure”,

( b) by the substitution of the following subsection for subsection (2):

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

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

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

and

( c) by the insertion of the following subsections after subsection (3):

“(3A) 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 accused.

(3B) 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.

(3C) 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.”.

(2) This section shall not apply to a failure to answer a question to which section 2 of the Offences Against the State (Amendment) Act 1998 relates if the failure occurred before the commencement of this section.