'An analysis of the ongoing erosion of the presumption of innocence in Irish law’

This thesis provides a comprehensive overview of the presumption of innocence in Irish law. It argues that the scope of the presumption of innocence is not confined to narrow evidential rules at criminal trials but is a broader right extending beyond the trial setting to Garda investigations. It also argues that the presumption of innocence continues to be eroded both by legislation and judicial findings. It demonstrates this by analysing case law from Ireland, the European Court of Human Rights and England and Wales. This study complements the work of Hamilton (Hamilton, C, The Presumption of Innocence and Irish Criminal Law (Irish Academic Press 2007)) in two ways – by conducting historical research on the treatment of the presumption of innocence in Ireland prior to Woolmington v DPP and by analysing the ongoing erosion of the presumption of innocence in Irish law in the period from 2007 to 2021, which is not covered by Hamilton’s book. Chapters 1 and 2 are foundational. Chapter 1 engages with the great debates about the presumption of innocence. Chapter 2 conducts a historical survey of the presumption of innocence in England and Ireland and the degree to which the courts have interacted with the presumption. Chapter 3 examines the extent to which the presumption of innocence is under significant threat of erosion by reverse onus provisions. Chapter 4 argues that the presumption of innocence is eroded by legislation that criminalises silence. In Chapter 5 the problem of drawing adverse inferences at trial from an accused person’s failure to account during Garda questioning is discussed. The ‘failure to account’ provisions are analysed. Chapter 6 analyses the more general abridgment of the right to silence and the presumption of innocence by the introduction of ‘failure to mention’ provisions for ordinary criminal offences. The absence prescribed caution is also analysed in depth. The European Union Directive on the presumption of innocence is examined. The broader trend of weighing up competing interests in the administration of justice is analysed in Chapter 7 to explain the broader context in which the erosion of the presumption of innocence has occurred.