Thursday, 24 March 2011

The Right to Silence - Why we have it

I have commented previously upon the fundamental assault on our civil liberties currently contained in the innocuous sounding but unprincipled Criminal Procedure (Reform and Modernisation) Bill. The bill is being driven through the House by former conveyancing lawyer Simon Power, a politician who knows practically nothing about the historical reasons behind our fair trial rights or what we are going to lose by removing them. Anyway in this bill there is provision for a judge to draw an adverse inference if an accused elects to use his or her right to silence. This begs the questions as to why we have that right in the first place.

Fundamental to our system of justice is the principle that an accused is presumed innocent until proven guilty beyond reasonable doubt. For once before we take another populist leap to the right, let’s pause and look at what we are sacrificing. The right to silence forces the prosecution to find evidence linking the accused to the crime and to make a case against the accused.

The right to silence in court forms a guarantor of the presumption of innocence in that it forces the burden of proof fully onto the prosecution to base its case on solid evidence rather than to either trick, intimidate or confuse the accused into incriminating themselves or making contradictory statements that undermine their credibility.

The right to silence also forms a guarantor of the presumption of innocence by forcing the police to find solid evidence linking the accused to the crime rather than try and trick or intimidate the accused into incriminating themselves. Often Police crime investigation means forming a theory of the case from the start, and rather than looking at all the evidence dispassionately, focusing instead on only the evidence that fits the initial Police theory. This is why in terms of the rules of disclosure, the Crown has a duty to disclose all the evidence, including statements not just from the witnesses they intend to be call, but also from all witnesses. The right to silence is a huge practical benefit. It gives the police an incentive to investigate a case thoroughly, looking for objective evidence of who committed a crime, because they cannot rest solely on the accused answering their questions.

The right to silence therefore not only protects the accused but also helps ensure that cases are investigated thoroughly and prosecuted on the basis of presenting all the evidence rather than mere spin and Crown cherry picking. Removing it or weakening it risks lowering the standards of evidence in prosecutions and will increase the risk of the innocent being convicted. The only sure way to reduce this risk is to perform a thorough investigation looking for solid evidence of their guilt. The right to silence provides a strong incentive to do just that, and thus suspects should not be deterred from exercising it.

It appears our justice system is striving to go fall circle. Fundamental bulwarks bequeathed to us by history to protect the individual against the might of the state are being slowly whittled away for the sake of getting the desired result. The right to silence is such a bulwark, in days past when the state believed it had "its man" all that was needed was to torture or trick a confession out of him. Is it any wonder that a number of third world countries, dictatorships have no such protection?

The Chinese newspaper the Peoples Daily observed in November 2000 on the eve of the introduction of the right to silence to China: "In spite of its subjectivity, a confession has been taken as the major source of proof in trying criminal cases in China. The right to silence application is believed to help eliminate inquisition by torture or extorting a confession. The regulation practically admits the presumption of innocence and therefore has brought a radical change to the traditional judicial concept in the country, said Yang. The presumption of innocence means that a suspect is supposed innocent when the interrogation begins and will not be convicted unless there is proof to prove his guilt."

Let us not forget the wisdom in the old adage that "Those who do not learn from history are doomed to repeat it."

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