The right to silence in the UK

August 23rd, 2014 at 12:00 pm by David Farrar

The Herald reports:

As they did ahead of the 2008 and 2011 General Elections, the New Zealand Police Association yesterday released its policy document “for the future”.

Included in the proposals was a sterner stance on defendants’ refusals to co-operate with statements and evidence.

“The Police Association believes government policy to improve the effectiveness of the criminal justice system should … amend the law relating to criminal procedure and evidence to allow judge and jury to draw such inferences as appear proper from a defendent’s refusal to answer questions or give evidence,” the policy document reads.

“The incentive to silence greatly obstructs the ability of police, the courts, and most importantly victims, to ascertain the full truth and receive an explanation for an offence.”

“No one can make anyone talk but if you refuse to speak … then they should be able to comment on that,” association president Greg O’Connor said.

“No one is going to force you to speak, but the judge might say, ‘one might have thought if you were innocent, you would want to talk.’ It’s really about going along with the UK.”
In the United Kingdom, which shares New Zealand’s common law legal heritage, “a judge or jury may draw ‘such inferences as appear proper’ from a defendant’s refusal to make statements of give accounts to the police or court, while providing that a finding of guilt cannot be based solely on such inferences”.

“New Zealand should adopt a similar reform,” the association policy states.

The has been in the common law since the 1600s.

There are two aspects to the right to silence.

  1. The right to actually not answer questions. Most other participants in a trial must answer the question posed to them, or face jail for contempt.
  2. The right not to face adverse comment in court on the fat you have exercised the right to silence

As far as I know, no one wants to change the first part, just the second.

I suspect that juries, even if told not to, do mark a defendant down if he or she remains silent. But plenty of defendants have been found not guilty who have remained silent, so the impact is presumbly minor.

UK law does indeed the court to make adverse comment on a defendant remaining silent, but states the jury must be told no conviction can be be made solely on silence.

Stephen Franks makes the case for adopting the UK law:

I’m sorry that some in ACT have reneged on the policy I worked for in Parliament, according to Stuff.

 That policy to end the “so-called right to silence” (Ted Thomas J’s description of it) took into account the UK experience after ending it more than a decade earlier. It considered the academic writing on both sides (retired NZ judges from both sides of the  left/right spectrum considered it to be a poseur right). But mostly it flowed from my determination to focus our policy back on to increasing the availability to courts of the truth, the whole truth and nothing but the truth.

Most of the lay opposition to its abolition is out of a misconception that a right to silence would be replaced by a rule forcing people to give evidence. It would not. An accused could remain silent still. The only change could be that the court is permitted to recognise and draw inferences from a failure to expose yourself to cross-examination.

 Such a reform would simply recognise a common sense reasoning that probably finds its way into many (but unfortunately not all) jury findings despite vain judicial instructions not to take it into account. That reasoning is that the person in the court in the best position to know what really happened involving him is the defendant. If he has counsel hounding other witnesses with potentially spurious theories about what happened but declines to offer his own evidence, or to expose himself to questioning, then the court is deprived of the most direct account of the truth.

Mike Sabin has a members’ bill to allow adverse comments on silence to be made, where a victim is aged under 12.

Of interest is that former defence lawyer Russel Fairbrother called for a law change in 2008 when a Labour MP, as did Sir Geoffrey Palmer.

Overall I’m not convinced though. The change to the UK law might not be a bad change in itself, but it might be the start of a slippery slope where the right to silence gets eroded more and more.

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58 Responses to “The right to silence in the UK”

  1. metcalph (1,428 comments) says:

    I should point out that the European Court of Human Rights doesn’t have a problem with the UK practice of the Right to Silence.

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  2. Redbaiter (8,551 comments) says:

    The right to silence exists primarily to protect citizens from the predations of bent or dishonest cops. There is no reason to change it and I’m disgusted in Stephen Franks going along with the suggestion.

    One thing the West should know that while once the UK set the standard for civilisation it is now a decrepit and collapsing shadow of the country it once was and we do not need to follow them down the same road to self destruction.

    In this matter or any other matter.

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  3. jackinabox (776 comments) says:

    “The right to silence exists primarily to protect citizens from the predations of bent or dishonest cops.”

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  4. kowtow (8,324 comments) says:

    The right to silence remains. That is fundamental to our legal system and should remain the case.

    What the UK does is allow the prosecution to enter evidence that the accused when given the opportunity opted to remian silent.It is then for the judge and jury to draw whatever ,if any inference from that.

    This field of law is huge , from memory it’s about what’s called “judges rules”.(maybe a legal eagle can help here).

    Judges’ rules were and are all about ensuring that a suspect when in custody was not placed under undue stress ,pressures ,oppression by the almighty state.It was/is there to help the village idiot from being bulied into “coughing” for something he didn’t do.

    Judges rules have evolved into giving a suspect (in fact the defence) a big advantage over the prosecution and this is perhaps part of the evolving or resolving that imbalance.

    After all ours is an adversarial system and surely it is justice that must be served .

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  5. G152 (305 comments) says:

    No doubt those who want this change wouldn’t be adverse to having these ‘alterations’ in any case they had to face ?

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  6. Gulag1917 (878 comments) says:

    Something wrong with police departments investigative ability? Lazy and unintelligent cops? Criminals generally trip themselves up so there is no justification for the removal/amendment of the right to remain silence.

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  7. Viking2 (11,413 comments) says:

    Right to silence is not a corner post of justice. its a dog pissing post where people who are accused of breaking the law can use this to not speak either in their defense or otherwise.
    Its about avoiding the truth.
    If we don’t treat the establishment of the Truth as a priority how can anyone ever argue that court trials are fair, correct and have established the correct outcome?

    Something our courts are quite good at often.

    Is this what we want?

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  8. mjw (392 comments) says:

    Right now, the principal supporter of the right to silence seems to be the Justice minister.

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  9. jackinabox (776 comments) says:

    “If we don’t treat the establishment of the Truth as a priority how can anyone ever argue that court trials are fair, correct and have established the correct outcome?”

    Well if you want the truth Viking you had better do away with the adversarial system, bent cops, equally bent Crown lawyers and biased judges.

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  10. Chuck Bird (4,847 comments) says:

    “how can anyone ever argue that court trials are fair, correct and have established the correct outcome?

    Something our courts are quite good at often.”

    Quite often but not often enough. Judges are meant to administer the law without fear, favour or prestigious.

    They often fail to do this like the recent case of the child beater in Tauranga who got a slap on the wrist twice. Even his profession was suppressed. You do not have to be a rocket scientist to guess his profession.

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  11. big bruv (13,727 comments) says:

    The “right to silence” is how David Bain walked free.

    Had Bain been forced to answer questions as he should have been then even allowing for the fucked up jury in his retrial it is my firm opinion that he would have been rightly convicted.

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  12. J Bloggs (237 comments) says:

    “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.”
    -Cardinal Richelieu

    The right to silence, and have no inference drawn from it is a crucial element to a fair trial. If the police and prosecution cannot prove beyond reasonable doubt the accused is guilty, without the accused speaking, then they should not be taking the case to the courts.

    Without the right to remain silent and have no inference drawn, then any accused (guilty or not) is left in a quandry – either remain silent and have the inference made that they don’t want to speak because they are guilty, or else opt to speak with the risk that whatever they say may be taken and twisted by a good lawyer to get a jury to convict.

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  13. JC (949 comments) says:

    Personally I don’t think anything a suspect says without a lawyer being present should be admitted to a court. The shock of apprehension, the circumstances, lack of brain power or poor English skills are just some of the things that could trap anyone into saying something that could be construed as guilt or a confession.

    I sometimes wonder if thats part of the reason why Maori feature so highly in the conviction stakes.

    JC

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  14. NK (1,231 comments) says:

    The police policy appears to be that inferences can be drawn on either the failure to answer questions from the police, or the failure to give evidence. Franks appears to just focus on the latter. I’m uncomfortable about either change. We often look to hard cases and recommend a law change as a result: the Kahui case is a prime example. But the maxim that “hard cases make bad law” definitely applies. It’s often just reactionary BS that leads to this. It’s not a major issue IMHO and it should be left as is.

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  15. Gulag1917 (878 comments) says:

    What was the culture in NZ that produced a nation where most homes were unlocked. Maybe that is the answer, not legal changes but a cultural shift.

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  16. jackinabox (776 comments) says:

    “No one is going to force you to speak, but the judge might say, ‘one might have thought if you were innocent, you would want to talk.

    Poor Arthur Thomas spoke, declared his innocence untold times but to no avail. It would have been better for all concerned if he had kept his mouth shut, told Hutton and co to fuck off and followed Demler’s lead and hid his rifle. No rifle, no planted bullet case and no eulogy stating that Hutton’s integrity was beyond reproach.

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  17. prosper (157 comments) says:

    J bloggs well put.

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  18. Rowan (2,115 comments) says:

    Bollocks Bigot Blouse
    Bain “walked free” because there was no case against him, and the crown case against him was exposed for what it was, everything he said in 1995 was also given to the jury, as Reed said he had nothing further to say. The jury dismissed the case in near record time so were obviously not nearly as convinced as you nutters are and David answering a few questions was hardly going to change that.
    Vivian Thomas spoke in Arthurs defence at his trial where she was accused of being an accessory after the fact and the women who fed the baby. She didn’t come over well so by your reasoning is this why Thomas was convicted and does this make him guilty?

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  19. Paulus (2,608 comments) says:

    And that includes the murderers of a number of infants eg Kahui twins.

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  20. Johnboy (16,077 comments) says:

    The right to gentle torture should be re-instigated.

    Guilty folk should be tickled with a feather on the soles of their feet till they confess! :)

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  21. SGA (993 comments) says:

    Like medical diagnosis, court decisions are never going to be 100% accurate. If you try to increase “true positives” (convicting the guilty), you are most likely to increase “false positives” (convicting the innocent) as well – it’s the nature of the beast. It’s a matter of what society thinks is an acceptable balance of “false postives” and “false negatives”.

    Answering questions in court isn’t a level playing field. On one hand, you have someone who is in a strange environment, most likely highly stressed by the situation, has a lot a stake, and possibly isn’t the sharpest knife in the drawer. On the other hand, you’ve got a well-educated seasoned professional to whom this is another day at the office.

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  22. Dexter (292 comments) says:

    The right to silence is fine, the right to silence until I have full disclosure from the prosecution and can carefully manufacture a story, is not. And if you do want to adopt the latter course, then the prosecution should be able to make adverse comment.

    Which is why we need to adopt the U.K Police caution; “You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court.”

    A caution like that does not subvert the right to silence, it’s subverting the right to silence only so I can sing like a canary when I get to court tactic.

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  23. David Garrett (7,110 comments) says:

    I am with Stephen Franks on this, and he has explained what “removing the right to silence” actually means very well. I would wager that 9/10 people when asked “What does removing the right to silence mean?” would answer: “It means the police can force you to talk”. As Franks clearly explains, it is nothing of the sort.

    I am a little surprised that Nick K, whose opinion I greatly respect, is against changing the rule. For me it is almost a no brainer. As DPF notes, it is a very ancient common law rule which dates from a time when most criminal suspects were illiterate, and almost all had no idea of the law or their rights. While we still have illiterate criminals, most of them know the law as well as or better than the cop trying to interview them. It is a protection which is well past its use-by date in my view.

    Dexter: Well said

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  24. Johnboy (16,077 comments) says:

    “While we still have illiterate criminals, most of them know the law as well as or better than the cop trying to interview them.”

    Phew David. Are you saying Wiremu Chevy Hillman Hunter Te-Paki-Smyth is as smart as Senior Sergeant Plod?

    I find that hard to believe! :)

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  25. F E Smith (3,305 comments) says:

    I am against the proposal, and disagree with Stephen Franks on the issue. The effect of the England and Wales reforms is to have de facto removed the right to silence, while still pretending that the right still has some weight. It doesn’t.

    The point of the right is the idea that a person should not have to assist the police in building the case by which they are prosecuted. If the police cannot find sufficient evidence without the suspect filling in the gaps then they should not prosecute.

    Interesting that a hundred odd years ago the defendant was legally prohibited from giving evidence in their own defence, but now there is a move to essentially force them to give evidence. How times change when it suits the prosecuting authorities, eh?

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  26. F E Smith (3,305 comments) says:

    While we still have illiterate criminals, most of them know the law as well as or better than the cop trying to interview them.

    You are obviously dealing with a much smarter strain of criminal than I am seeing, David! 

    In the UK almost every person undergoing interview has benefit of counsel.  Here, a very small number ever have assistance from a lawyer.  Despite the PDLA scheme (because it is often impossible to actually contact someone on the scheme), most police interviews in NZ are carried out without benefit of counsel.

     

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  27. David Garrett (7,110 comments) says:

    JB: Sadly, that is not altogether impossible…as FES I am sure will attest… while I greatly respect (most of) them, “Police Officer” is not an occupation requiring a large amount of intelligence.

    While Mr Te Paki will of course usually not know under which section(s) and sub section(s) of the Crimes Act he may be charged, he will almost always know – at least after he’s been through the system of couple of times – that if he is banged to rights and has no innocent explanation, he is better to STFU

    FES: Good to see you back. You of course come from the position of “defender of criminals” – I do not criticise you for that, someone has to do it -but not me. But inevitably – consciously or sub-consciously – you are against anything which makes it less likely to get an acquittal, regardless of the facts, and utterly regardless of the guilt or innocence of the offender. Some of us take a broader view.

    A question for you: Is a person entitled to refuse to be interviewed on tape without a lawyer present? Or is his only strategy to simply refuse to speak, or say “no comment” to every question? I am not being sarcastic, I don’t know the answers.

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  28. Johnboy (16,077 comments) says:

    I can remember arguing with Traffic Officer X at the Lower Hutt court regarding my passing on the yellow lines on SH 2 at Petone case back in 1966 DG and you’re right. :)

    I got off. MOT officer was a dumbcunt! :)

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  29. kowtow (8,324 comments) says:

    JC

    So when a cop puts the hand on the shoulder in a red handed apprehension and says “You’re nicked mate” and the crook says ‘That’s a fair cop guv” ,it shouldn’rt be entered as evidence ,cos there wasn’t a lawyer there?

    Don’t maori get the same educational chances as whites? there’s no shortage of thick white crooks around .

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  30. Johnboy (16,077 comments) says:

    I was only 16 at the time.

    What a possible career I had ahead of me as a Lawyer! :)

    If I had wanted to lead a dead boring, pointless life! :)

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  31. David Garrett (7,110 comments) says:

    FES: You say if the prosecution can’t gather enough evidence without the defendant filling in the gaps, then they should not prosecute. So what you are saying is if a criminal has been smart enough to not leave any forensic evidence, and was lucky enough not to be seen by anyone, he shouldn’t be prosecuted for – say – a double murder?

    Down that path lies Detective Hutton’s descendants planting a bit of evidence just to make sure of a case which is almost there but not quite, and one in which all their collective years of experience tells them they have the guilty party in cell 21. In the Thomas case of course, Thomas – dumbo that he was – DID speak the Police and did all he could to convict himself, so I am speaking hypothetically. What of a rape case where the perp was careful to leave no DNA behind, but spoke throughout her ordeal to the victim, meaning that hearing the perps voice might be crucial evidence? I assume the so called right to silence includes refusing to say ” You’re loving it you bitch, you know you are” or something similar, so the victim can listen?

    JB: Pointless lawyering may be, but “dead boring” it certainly is not…especially not up in Tonga! I have had cases up there where even the defendant is laughing!…at the ridiculousness of his story, not that he is going to walk away.

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  32. Johnboy (16,077 comments) says:

    Afternoon Minus. Still no real life for you I see! :)

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  33. Fentex (938 comments) says:

    It’s a bad idea and pointing to jurisdictions with increasingly repressive authority over citizens (the UK is effectively re-establishing the Star Chamber by legislating secret trials hidden from public observation) as justification is not a good argument.

    What do people think jurors do when they weigh evidence? Does anyone imagine peoples keeping quiet doesn’t inform their decisions?

    I recommend watching this video which explains in detail why the right to silence protects citizens from abusive state power and should not be interfered with.

    A most salient point of the explanations given in it is that talking and telling the truth can be dangerous to the innocent – because what weighs against you is the difference between what you say and what the prosecution asserts. If the prosecution asserts an untruth which you have honestly denied you are made to look guilty by virtue of the states privileges.

    Being quiet may be the only thing that may save you from miscarriage of justice. and the state should not be permitted to use it as an excuse to press it’s own, possibly untrue, assertions.

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  34. David Garrett (7,110 comments) says:

    Fentex; You had me until the last sentence. The state can put forward any untrue assertions it likes, completely unaffected by the right to silence. What removing the right to silence does is allow it to also point out that the accused offered no alternative explanation.

    JB: You can imagine old Minus can’t you? Sitting in front of his ‘puter in his underpants, STABBING that “down” button and feeling himself to be – just for an instant – a powerful man…

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  35. F E Smith (3,305 comments) says:

    You of course come from the position of “defender of criminals”

    I disagree.  I am not a “defender of criminals” but one who holds the prosecuting authorities to account, making sure that nobody is convicted without there being evidence of their guilt beyond reasonable doubt.  Whilst I understand what you are saying, many people conflate being a defence lawyer with being a defender of what the client has potentially done, so I prefer not to frame it in the way that you did.

    But inevitably – consciously or sub-consciously – you are against anything which makes it less likely to get an acquittal

    Not at all.  In fact, completely incorrect.  As I said, I do not defend the crime.  I do my best to make sure that a person is not convicted unless there is sufficient evidence that they committed the crime.  I also know that we have an adversarial system, in which the Police, who are State funded and are able to put massive resources into an investigation if they want to, are trying to bring an accusation against my client with the aim of causing them to be punished.  This is not a collaborative system, indeed it is one where the noble aim of getting to the truth of the matter could result in my client spending a long time behind bars.  Why should he/she assist the Police in building that case?

    and utterly regardless of the guilt or innocence of the offender. Some of us take a broader view.

    That would be wrong, too. My job, as set out in the Rules of Conduct and Client Care, is to do my best to prevent my client being convicted, within the rules.  My own personal view of my client’s guilt or innocence, or their actual guilt or innocence, is irrelevant to that.  Which is as it should be.  The client is not paying me to inject my own opinion into the situation.

    Is a person entitled to refuse to be interviewed on tape without a lawyer present? Or is his only strategy to simply refuse to speak, or say “no comment” to every question?

    A person is entitled to refuse to be interviewed at all.  If he/she indicates that they do not want to make a statement then most police officers will leave it there, although often they will pester and pester until the client agrees, or ‘just ask a few questions’ without putting them in the interview suite.  Some will insist on putting the suspect in the suite, turning on the camera and ‘putting the case’ to the client ‘in the interests of fairness’.  Which is bollocks, and the officers who do it know that it is bollocks.  What they are hoping is that the suspect will get annoyed at some of the questions and start answering, notwithstanding their stated intention not to make a statement.

    But the short answer is no, nobody can be required to make a statement unless they are being interviewed by the Serious Fraud Office.

    So what you are saying is if a criminal has been smart enough to not leave any forensic evidence, and was lucky enough not to be seen by anyone, he shouldn’t be prosecuted for – say – a double murder?

    Yes.  If there is no evidence that the person committed the murders other than their own statement, then absolutely it is suspect. If there is no evidence that a person committed the murder and only a suspicion on the part of a police officer, should the suspect be forced to confess and therefore provide the sole evidence that convicts them?

    One of the common features of wrongful convictions in the US is that  about a quarter of those wrongfully convicted actually confessed to the crime that they did not commit.

    Down that path lies Detective Hutton’s descendants planting a bit of evidence just to make sure of a case which is almost there but not quite, and one in which all their collective years of experience tells them they have the guilty party in cell 21.

    If a police officer is willing to commit a criminal offence in order to gain the conviction of a person that they are sure is guilty but against whom there is insufficient evidence, then they have to live with that and with their own conscience, as well as the possibility of discovery and punishment at a later date.  I do not advocate changing the law to lessen the perceived reasons for police officers committing criminal offences. 

    What of a rape case where the perp was careful to leave no DNA behind, but spoke throughout her ordeal to the victim, meaning that hearing the perps voice might be crucial, if not the only, evidence available?

    Or of a drug deal where the only evidence was the recorded voice of the dealer?  Then I would advise my client (and have) not to say a word in front of Police.  Ever.

    Why not just make it a criminal offence not to report and confess to any criminal offences that you have committed? Why should police even have to wait for a complaint?

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  36. F E Smith (3,305 comments) says:

    What removing the right to silence does is allow it to also point out that the accused offered no alternative explanation.

    But why should they have to? After all, the defendant is not the one bringing the case, nor does he/she have any onus to prove anything.  

    I have seen defendants of limited intelligence destroyed in the witness box not by the evidence of their guilt, but simply because the prosecution lawyer, or, on one occasion, the judge, tied them up in knots and confused the hell out of them.

    The state brings the charges, the state has the onus of proof, and the state should not be able to persuade the jury that keeping silent means that the defendant has something to hide.

    I have to say that if this became a rule that I don’t think I would ever recommend my client elect trial by jury.  Because a jury most definitely will convict on that basis, regardless of what directions the judge gives them.

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  37. David Garrett (7,110 comments) says:

    You have shown you can debate and write well FES, nothing else.

    As I have said, you use your law degree in the way you think best befits your calling…without wanting to sound pompous, I choose to use mine another way…more specifically – when I had any power – to provide you with more clients !

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  38. Johnboy (16,077 comments) says:

    I once sat through a court case as a member of a jury being harangued by that supposed expert of jurisprudence the dreadful, drunken old cunt Mike Bungay David. It put me off lawyers forever. What a really sad old bastard he was! :)

    It was after that I worked out my infallible method of avoiding jury service. Never again have I had to put up with the dreadful creatures that habituate our court system. :)

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  39. jackinabox (776 comments) says:

    “Thomas – dumbo that he was – DID speak the Police and did all he could to convict himself”

    And just there is the reason to leave it well alone!

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  40. F E Smith (3,305 comments) says:

    You have shown you can debate and write well FES, nothing else.

    I don’t get that.  Isn’t that what we are trying to do? I know it was unlikely to change your mind, but surely putting my reasons is valid?  

     you use your law degree in the way you think best befits your calling

    I am not sure about that.  Never meant to do criminal law.  I do see benefit in standing between the state and the citizen to ensure that the law is followed.  I think that is an important role.  Do you not agree?

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  41. Johnboy (16,077 comments) says:

    What are your pikelets like FES? :)

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  42. NK (1,231 comments) says:

    True story scenario from about 6 months ago.

    A guy rings and says he’s the boyfriend of someone I know reasonably well. He is separated from his wife, after a very bitter separation. She went absolutely seppo on him.

    Anyhow, my guy had just been called by a detective constable wanting to speak to him about allegations of sexual violation by his ex wife that allegedly occurred during the marriage. They had been separated for about 2-3 years, and these instances allegedly occurred about 5-7 years ago.

    He asks me for advice.

    I phoned the detective and asked a bit more about it – was it specific dates, or just general allegations. She tells me specific dates. I ask if I could get a copy of her statement, but she declined. She asks whether my client will “come in for a chat”. I say I’ll let her know.

    I make an OIA on the statement, but she refuses to disclose it on grounds it could harm an investigation. She again asks whether my guy will talk to her.

    At this stage I’m thinking we don’t know at all what the allegations are; when they occurred; the circumstances surrounding them etc. We are just blind as bats. I said to my guy if you think she’s a bullshitter then you could go on record and say she’s a bullshitter and insane and a liar and none of it happened. But the risk here is this: the Police ask him a curly question from 6 years ago (or so) and he has no idea of the answer (because it’s six bloody years ago!); he looks like a possum in headlights in camera when tawdry, awful allegations are out to him; and freezes up and the police think he’s worth a shot at prosecuting – hell, let the jury decide!

    The tape is played to the jury and they think “shit, he can’t even remember what they did or where they went etc…what’s he hiding” etc.

    Guilty? Who knows. But the risk was far, far too great.

    I tell said lady DC that he’s not talking and good luck in their investigation.

    She writes to me about 2 weeks later and advises the case is closed.

    If this law had come in, he would have been in trouble. The jury would have been told about the negative inferences, and sure, they could be explained away, but no lawyer worth pinch of shit would want to try their luck.

    This is a true scenario, and the best reason NOT to stuff with the rule.

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  43. F E Smith (3,305 comments) says:

    Abysmal, johnboy.

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  44. F E Smith (3,305 comments) says:

    Well said, NK.

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  45. Johnboy (16,077 comments) says:

    Ask Judith for her recipe FES. Her’s are utterly wonderful. Just like everything she does! :)

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  46. Johnboy (16,077 comments) says:

    A fascinating case it was FES. Bungay defending. Kit Toogood prosecuting. Last time I ever had to catch a train….. Ganz Mavag ….brand new at the time…. Scrapped for the Murri name things.

    The most insulting thing for me was I was forced to get out of my wheels and catch a peoples train as the court doesn’t supply parking for jurors.

    I formulated my plan for never being a juror after that and it works fine! :)

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  47. stephieboy (2,795 comments) says:

    My understanding is that in the UK the right to silence has been modified that allows Juries to make certain inferences from the accused’s silence in certain defined circumstances . The change was bought about by when IRA and Protestant Terrorist groups and factions etc were active
    I would say with ISIS and other Jihad Terrorists threats this would be more imperative and highly relevant.

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  48. F E Smith (3,305 comments) says:

    DG, I just noted the last part of your 2.52 comment: I would say thanks but all it got us is falsely predicated abuse from Simon Power!

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  49. kowtow (8,324 comments) says:

    “I have seen defendants of limited intelligence destroyed in the witness box not by the evidence of their guilt, but simply because the prosecution lawyer, or, on one occasion, the judge, tied them up in knots and confused the hell out of them.”

    In the case of the judge should have appealed, a competent lawyer would.And inn the other cases it;s the judges duty to protect the interests of the charged if he wasn’t represented and if he was then his defence lawyer was shit……..

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  50. F E Smith (3,305 comments) says:

    In the case of the judge should have appealed, a competent lawyer would

    No!  Really???

    And inn the other cases it;s the judges duty to protect the interests of the charged if he wasn’t represented and if he was then his defence lawyer was shit……..

    Sadly lawyers only have a limited ability to run interference for their witnesses.  

    Any other bits of advice for us, kowtow?

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  51. Nostalgia-NZ (5,119 comments) says:

    F E Smith, standing between The Crown and the accused without fear or favour, hardly the place for the faint hearted. Cheers.

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  52. SGA (993 comments) says:

    F E Smith at 9:57 pm

    Any other bits of advice for us, kowtow?

    With hindsight, don’t drink and blog?

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  53. SGA (993 comments) says:

    David Garrett at 3:48 pm

    You have shown you can debate and write well FES, nothing else.

    No. That means (s)he can think clearly as well. Even if you and I might (or not) disagree.

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  54. Mark (1,480 comments) says:

    The right to silence should remain as it is. If there is insufficient evidence for a conviction and an accused person does not answer questions then how can a negative innuendo from the prosecutor change the lack of evidence? Perhaps I am being a bit thick here but I don’t see the point of the change unless you feel juries should be able to convict because they feel someone might be guilty.

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  55. Dennis Horne (2,388 comments) says:

    I think judges ought to be able to ask defendants questions. Otherwise it’s like doctors of old having to make a diagnosis without being allowed to physically examine the woman. (Some doctors get the diagnosis right in the end. They’re called pathologists.)

    Lawyers don’t need the truth. They need to get their clients off or they are “no good”. The waffle about fair trial is so the decent ones can live with themselves. Turn a blind eye, “I don’t need to know”. True, as far as it goes; ignorance is bliss.

    Incidentally, Guest told Bain not to volunteer he had been wearing his mother’s glasses. Bain then realised he had to lie. Guest was able to put it right, eventually, but not until Binnie Dunce had decided to dismiss the glasses. He decided they were not necessarily broken during a fight with Stephen. Could have been something else. And we paid him hundreds of thousands of dollars…

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  56. Fentex (938 comments) says:
    So what you are saying is if a criminal has been smart enough to not leave any forensic evidence, and was lucky enough not to be seen by anyone, he shouldn’t be prosecuted for – say – a double murder?

    Yes.

    I suspect F E Smith did not mean ‘Yes, they should not be prosecuted’. I think they meant ‘Without sufficient evidence they should not be convicted’, surely?

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  57. Fentex (938 comments) says:

    I think judges ought to be able to ask defendants questions.

    And jurors as well? I’ve often thought a juror might spot a point requiring clarity that would leave them frustrated for passing without question.

    This blog discussed similar matters a while ago when the suggestion of changing the process for handling sexual assault claims was mooted and for a while the concept of adopting a non-adversarial approach was debated here.

    I’m curious, are does anyone suggesting ideas here that are modifications of our adversarial system remember having been in disagreement with the idea of changing it regarding sexual assault claims? I suspect context changes peoples ideas on the topic as it so often does.

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  58. Slipster (150 comments) says:

    Absolutely not!

    What happened to the presumption of innocence?
    Defendant doesn’t have to prove or disprove anything. Interpreting silence as evidence of anything is a fundamental, basic error.

    The reason for silence may be totally unrelated for the accusation. For instance – the accused may be unwilling to tell where s/he was at the time of the incident due to hugely embarrassing personal/family reasons or to detrimental financial/business consequences (confidential business talks or even a job interview the defendant doesn’t want their current boss to hear about!)

    The argument above presumes that the defendant keeps silence to pervert the course of justice. That’s not necessarily true.
    And of course, speaking of presuming things, the jury isn’t supposed to presume anything apart from the innocence.

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