Statutory Instruments
NORTHERN IRELAND
Made
14th November 1988
Coming into operation in accordance with Article 1
At the Court at Buckingham Palace, the 14th day of November 1988
Present,
The Queen’s Most Excellent Majesty in Council
Whereas a draft of this Order has been approved by a resolution of each House of Parliament:
Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1 of Schedule 1 to the Northern Ireland Act 1974(1) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:—
1.—(1) This Order may be cited as the Criminal Evidence (Northern Ireland) Order 1988.
(2) Articles 2 and 4 shall come into operation on the seventh day after the day on which this Order is made and the other provisions of this Order shall come into operation on the expiration of one month from the day on which it is made.
2.—(1) The Interpretation Act (Northern Ireland) 1954(2) shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.
(2) In this Order—
“child” means a person under the age of fourteen;
“place” includes any building or part of a building, any vehicle, vessel, aircraft or hovercraft and any other place whatsoever;
“statutory provision” has the meaning assigned by section 1(f) of the Interpretation Act (Northern Ireland) 1954.
(3) In Articles 3(2), 4(4), 5(2) and 6(2), references to an offence charged include references to any other offence of which the accused could lawfully be convicted on that charge.
(4) A person shall not be committed for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in Article 3(2), 4(4), 5(2) or 6(2).
(5) A judge shall not refuse to grant such an application as is mentioned in Article 3(2)(b) solely on an inference drawn from such a failure as is mentioned in Article 3(2).
(6) Nothing in this Order prejudices the operation of any statutory provision which provides (in whatever words) that any answer or evidence given by a person in specified circumstances shall not be admissible in evidence against him or some other person in any proceedings or class of proceedings (however described, and whether civil or criminal).
In this paragraph the reference to giving evidence is a reference to giving evidence in any manner, whether by furnishing information, making discovery, producing documents or otherwise.
(7) Nothing in this Order prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.
3.—(1) Where, in any proceedings against a person for an offence, evidence is given that the accused—
(a)at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b)on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies.
(2) Where this paragraph applies—
(a)the court, in determining whether to commit the accused for trial or whether there is a case to answer;
(b)a judge, in deciding whether to grant an application made by the accused under Article 5 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988(3) (application for dismissal of charge where a case of fraud has been transferred from a magistrates' court to the Crown Court under Article 3 of that Order); and
(c)the court or jury, in determining whether the accused is guilty of the offence charged,
may—
(i)draw such inferences from the failure as appear proper;
(ii)on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
(4) This Article applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in paragraph (1) “officially informed” means informed by a constable or any such person.
(5) This Article does not—
(a)prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this Article; or
(b)preclude the drawing of any inference from any such silence or other reaction of the accused which could be drawn apart from this Article.
(6) This Article does not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this Article.
4.—(1) At the trial of any person (other than a child) for an offence paragraphs (2) to (7) apply unless—
(a)the accused’s guilt is not in issue; or
(b)it appears to the court that the physical or mental condition of the accused makes it undesirable for him to be called upon to give evidence;
but paragraph (2) does not apply if, before any evidence is called for the defence, the accused or counsel or a solicitor representing him informs the court that the accused will give evidence.
(2) Before any evidence is called for the defence, the court—
(a)shall tell the accused that he will be called upon by the court to give evidence in his own defence; and
(b)shall tell him in ordinary language what the effect of this Article will be if—
(i)when so called upon, he refuses to be sworn;
(ii)having been sworn, without good cause he refuses to answer any question;
and thereupon the court shall call upon the accused to give evidence.
(3) If the accused—
(a)after being called upon by the court to give evidence in pursuance of this Article, or after he or counsel or a solicitor representing him has informed the court that he will give evidence, refuses to be sworn; or
(b)having been sworn, without good cause refuses to answer any question,paragraph (4) applies.
(4) The court or jury, in determining whether the accused is guilty of the offence charged, may—
(a)draw such inferences from the refusal as appear proper;
(b)on the basis of such inferences, treat the refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the refusal is material.
(5) This Article does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a refusal to be sworn.
(6) For the purposes of this Article a person who, having been sworn, refuses to answer any question shall be taken to do so without good cause unless—
(a)he is entitled to refuse to answer the question by virtue of any statutory provision, or on the ground of privilege; or
(b)the court in the exercise of its general discretion excuses him from answering it.
(7) Where the age of any person is material for the purposes of paragraph (1), his age shall for those purposes be taken to be that which appears to the court to be his age.
(8) This Article applies—
(a)in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this Article;
(b)in relation to proceedings in a magistrates' court, only if the time when the court begins to receive evidence in the proceedings falls after that commencement.
(9) Where the accused gives evidence in pursuance of this Article, section 3 of the Criminal Evidence Act (Northern Ireland 1923)(4) (right of reply) shall have effect as if he had given evidence in pursuance of that Act.
(10) In section 1 of the Criminal Evidence Act (Northern Ireland) 1923—
(a)proviso (a) and in proviso (b) the words “of any person charged with an offence, or” are repealed;
(b)in provisos (d) to (g), references to that Act shall be construed as including references to this Order.
5.—(1) Where—
(a)a person is arrested by a constable, and there is—
(i)on his person; or
(ii)in or on his clothing or footwear; or
(iii)otherwise in his possession; or
(iv)in any place in which he is at the time of his arrest,
any object, substance or mark, or there is any mark on any such object; and
(b)the constable reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and
(c)the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and
(d)the person fails or refuses to do so,
then if, in any proceedings against the person for the offence so specified, evidence of those matters is given, paragraph (2) applies.
(2) Where this paragraph applies—
(a)the court, in determining whether to commit the accused for trial or whether there is a case to answer; and
(b)the court or jury, in determining whether the accused is guilty of the offence charged,
may—
(i)draw such inferences from the failure or refusal as appear proper;
(ii)on the basis of such inferences, treat the failure or refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure or refusal is material.
(3) Paragraphs (1) and (2) apply to the condition of clothing or footwear as they apply to a substance or mark thereon.
(4) Paragraphs (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in paragraph (1)(c) what the effect of this Article would be if he failed or refused to comply with the request.
(5) This Article does not preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this Article.
(6) This Article does not apply in relation to a failure or refusal which occurred before the commencement of this Article.
6.—(1) Where—
(a)a person arrested by a constable was found by him at a place at or about the time the offence for which he was arrested is alleged to have been committed; and
(b)the constable reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence; and
(c)the constable informs the person that he so believes, and requests him to account for that presence; and
(d)the person fails or refuses to do so,
then if, in any proceedings against the person for the offence, evidence of those matters is given, paragraph (2) applies.
(2) Where this paragraph applies—
(a)the court, in determining whether to commit the accused for trial or whether there is a case to answer; and
(b)the court or jury, in determining whether the accused is guilty of the offence charged,
may—
(i)draw such inferences from the failure or refusal as appear proper;
(ii)on the basis of such inferences, treat the failure or refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure or refusal is material.
(3) Paragraphs (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in paragraph (1)(c) what the effect of this Article would be if he failed or refused to do so.
(4) This Article does not preclude the drawing of any inference from the failure or refusal of a person to account for his presence at a place which could properly be drawn apart from this Article.
(5) This Article does not apply in relation to a failure or refusal which occurred before the commencement of this Article.
G. I. de Deney
Clerk of the Privy Council
(This note is not part of the Order)
This Order amends the law relating to evidence in criminal proceedings in Northern Ireland. Article 3 specifies circumstances in which inferences may be drawn from an accused’s failure to mention particular facts when questioned about or charged with an offence. Under Article 4, an accused person may be called upon by the court to give evidence at his trial, and certain inferences may be drawn if he refuses to do so. Article 5 authorises inferences to be drawn from an accused person’s failure or refusal to account for objects, substances or marks in certain circumstances. Article 6 allows inferences to be drawn from an accused person’s presence at a place about the time when the offence in respect of which he was arrested was committed, if specified conditions are satisfied.