DPP v M: Accused’s constitutional right to silence cannot be held to be waived by ambiguous words

In this case,  Director of Public Prosecutions v M, the Supreme Court held that “the constitutional protection afforded to the right to silence is such that waiver cannot be held to be implied by ambiguous words”.



Gardai investigated an allegation of indecent assault made against KM. KM produced a prepared written statement at his interrogation, in which he claimed the allegation was “blatantly false”. He responded to all questions put to him by stating he had nothing to say other than what was in the written statement.

At trial, KM objected to the prosecution introducing the transcript of the interview into evidence. KM argued that that would interfere with his right to silence. The Circuit Court trial judge allowed the prosecution to introduce the evidence. The court convicted KM of indecent assault.

KM appealed that decision to the Court of Appeal


Case Law

In People (Director of Public Prosecutions) v Finnerty [1999] 4 I.R. 364 the Supreme Court held that the right to silence would be significantly eroded if a jury was invited to draw adverse inferences from an accused’s refusal to answer questions during investigation. In that case, Finnerty had refused to answer all questions put to him. The Court set out principles for future cases:

(1) Where nothing of probative value has emerged as a result of such a detention, but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained, but that nothing of probative value emerged.

(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant, during the course of his detention, to answer any questions, be permitted.

(3) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.


Court of Appeal

The Court of Appeal (here) dismissed KM’s appeal. The CoA distinguished this case from Finnerty, stating:

There is a great deal of difference between saying “No comment” or “I don’t wish to say anything”, on the one hand, and saying, having already in fact commented, that “I have nothing to add to what I have said already”, on the other hand [25].


Supreme Court 

The Supreme Court granted KM leave on the question:

Where a person has volunteered an exculpatory statement and thereafter responds to questions by referring to the statement and saying that he or she has nothing further to say, should such responses be seen as:

a) an exercise of the right to silence, or

b) relevant and probative evidence in the trial?


O’Malley Iseult J wrote the judgment for a five judge panel of the Court.

In brief, the State argued that KM had not exercised his right to silence. He volunteered a statement and referred to it in answer to questions put to him. O’Malley J summarised the KM submission as,

24. The appellant submits that the trial judge and the Court of Appeal erred in their interpretation of what had occurred in the interview. That interpretation is summarised as being that the appellant said, in effect “I have nothing to say in response to this particular question other than what is written in my statement”, whereas the appellant’s contention is that he was saying “I have nothing to say in this interview other than what is written in my statement.”


O’Malley J noted a fact from Finnerty that is seemingly overlooked in later case law: Finnerty stated that he was innocent after he was cautioned by the arresting Garda. After advice from counsel, he later exercised his right to silence.

After extensive examination of the case law on the right to silence, and how that applies to the facts in this case, O’Malley J concluded:

66. Furthermore, it has always been accepted that a suspect is entitled to elect to answer some questions and to refuse to answer others. That is why practitioners and trial judges are used to the concept of editing interview memoranda. The making of a voluntary statement, as in this case, amounts to a clear waiver of the right to silence to that extent, but it does not follow that the suspect thereby waives the right in respect of either a prior or subsequent refusal to answer questions. I consider that the constitutional protection afforded to the right to silence is such that waiver cannot be held to be implied by ambiguous words. Moreover, it is not appropriate to parse the words used as if they were the words of a parliamentary draughtsman. A consideration of the context is essential. I would therefore hold that it was incorrect for the trial judge to distinguish Finnerty simply on the ground that the appellant had not employed the “no comment” formula.


As the trial judge had not outlined why he considered that the probative value of the evidence outweighed its prejudicial effect, O’Malley J held that it should not have been admitted, allowed the appeal and quashed KM’s conviction.

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