The right to silence in the UK

The Herald reports:

As they did ahead of the 2008 and 2011 Elections, the New Zealand 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 believes 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 right to silence 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  /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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