UK: Right of silence to go
01 September 1993
On 6 October Michael Howard became the last in a long line of Tory Home Secretaries to rally flagging public support and buy back police loyalty with a law-and-order package. But Howard's proposals go further than locking up more people in prison, giving the police new powers and creating new offences - although all these are proposed - to abolition of the right to silence in mainland Britain.
The right to silence was adopted in the seventeenth century, as a safeguard against oppression by the Star Chamber. In recent years it has been eroded little by little. In all cases where an alibi is relied on, defendants are required to provide details, and names and addresses of supporting witnesses, a week after their case is committed to the Crown court, so that police can interview alibi witnesses. Miscarriages of justice have resulted from improper pressure being put on alibi witnesses to retract or change their evidence, and from police going to illegal lengths to disprove the alibi; this allegedly happened in the cases of the Guildford Four, the Cardiff Three and the Taylor sisters. As well as alibi details, any scientific or expert evidence to be relied on by defendants must be produced in advance of trial. In specialist investigations, the right to silence has already been abolished: the Serious Fraud Office (SFO) and the Department of Trade and Industry (DTT) investigators can require suspects to answer questions. Despite these erosions, however, the basic right remains - that a suspect is not required to answer questions, either under questioning by the police, or at trial: it is for the prosecution to prove the case against an accused, not for an accused to disprove guilt. The caution a suspect is given on arrest embodies the right in the words: "You are not obliged to answer questions". And no judge or prosecutor may comment on a suspect's refusal to answer questions in the exercise of this right.
In Northern Ireland the right to silence was abolished by the Criminal Evidence (NI) Order of November 1988. Tom King, then Secretary of State for Northern Ireland, caused a furore by making the announcement, and justifying it by the alleged habit of "terrorists" to remain silent under questioning, in the middle of the trial of the Winchester Three; the announcement was believed by many to be deliberately timed to affect the trial, and the Court of Appeal subsequently quashed their convictions for conspiracy to murder because of the prejudice King's announcement had caused.
Under the 1988 Order, a defendant must account for his presence in a particular place, explain marks on his clothing and give an explanation of his actions at the police station. rather than for the first time at trial. Failure to do so is corroborative of guilt. Although the Order does not say that an accused must give evidence in court, in 1992 the House of Lords in effect said that this was implicit, holding in the case of R v Murray that the 1988 order had changed the common law regarding the comments and inferences which could be drawn from an accused's silence at trial. They said that if the prosecution has made out a prima facie case and the defendant refuses to testify, a judge or jury may draw any reasonable inference, including one of guilt.
There is now a real fear of a return to supergrass trials, abandoned in the early eighties because of the lack of independent corroboration of accomplices' evidence. Once corroboration is provided by an accused's silence in the face of the testimony of a supergrass, there is a frightening prospect of indefinite "internment-by conviction", where suspected terrorists are put away for decades on the basis of no evidence of crime other than a fable concocted for favours.
Many observers believe that the Northern Ireland Order is in breach of the European convention on Human Rights, Article 6 which gives the right to a fair trial and places the presumption of innocence at its heart. To demand that a su