Speaking up for silence
The Government's withdrawal of the right to remain silent is being challenged in Europe. Sharon Wallach reports
Wednesday 19 April 1995
The first case, that of Ernest Saunders, is to be heard next month. The former Guinness chairman was convicted of false accounting and theft for his part in the illegal multi-million pound operation to prop up Guinness shares while the company battled for control of the drinks company Distillers.
His case is that he was denied a fair trial, in breach of Article 6 of the European Convention on Human Rights, because he was compelled to incriminate himself under the powers of earlier criminal justice legislation - the Act of 1987.
These provisions are different to those in the 1994 Act, under which there is no threat of imprisonment or contempt of court charges for failure to answer questions. But, says John Wadham, of the civil rights organisation Liberty, the judges at the European Court of Human Rights may lay down principles forcing the Government to revoke the 1987 Act, or indeed the 1994 legislation.
The second case is that of John Murray, of Northern Ireland, due to be heard by the European Court of Human Rights on 20 June. Four years ago, Mr Murray was convicted of kidnapping by a Diplock court, in which a judge, sitting without a jury, pronounces on guilt or innocence. Mr Murray had remained silent when interviewed by police and during his trial. The judge, the Lord Chief Justice of Northern Ireland, drew "adverse inference" from his silence, using the provisions of the 1988 Criminal Evidence (Northern Ireland) Order, the model followed by the Government for the relevant sections of the 1994 Criminal Justice Act.
Mr Murray took his case to the European Commission on Human Rights, which, while it ruled against him on the adverse inference point, signalled that a different ruling may have emerged if he had been tried by jury. Nicolas Bratza QC, the member of the commission appointed by the British government, said: "When it is a jury which must decide, without giving reasons, what adverse inferences, if any, to draw against an accused from his silence and what weight to attach to such inferences in arriving at a verdict, the risk of unfairness occurring appears to me to be substantially increased, however carefully formulated a judge's direction to the jury might be."
While there were widespread demonstrations against the introduction of the 1994 Criminal Justice Act, the abolition of the right of silence, in particular, was strongly opposed by lawyers, pressure groups and two Royal Commissions.
Abolition reverses the age-old presumption of innocence until guilt is proved, thus shifting the burden of proof from the prosecutions to the defendant. It may also, it is argued, lead to more miscarriages of justice.
"Police pressure can produce false confessions and unsafe convictions, and the right to remain silent is a valuable safeguard against this," says Liberty.
False confessions lie at the heart of high-profile miscarriages of justice, notably the cases of the Birmingham Six, the Guildford Four and Stefan Kiszko.
Judith Ward's is another case in point. She had a history of mental instability, and workers in the field of mental health say that the abolition of the right to remain silent has grave implications for the vulnerable, who may admit to crimes out of fear or lack of understanding. The vulnerable may also include those in a temporarily emotional and confused state of mind.
Another argument for the retention of the right to remain silent is that the right to a fair trial and the presumption of innocence are upheld by international human rights laws. In July, the United Nations Human Rights Committee is due to examine the UK's human rights record. The committee works under the International Covenant on Civil and Political Rights, which sets out the same rights as those in the European Convention on Human Rights, as well as stating that a person is entitled "not to be compelled to testify against himself or to confess guilt".
The most vocal supporters of abolition include the police, who say that controls on questioning introduced under the Police and Criminal Evidence Act have made obtaining confessions much harder. (Although John Alderson, the former chief constable of Devon and Cornwall, has said that the Criminal Justice Act provisions will allow police to "exert legal and psychological pressure on individuals held in the loneliness of their cells".)
Others say that removing the right of silence will lead to a reduction in crime, since only the guilty hide behind silence. But according to Liberty, there is no evidence that silence is used mainly by professionals, or that those who do use it would behave differently in the face of its abolition. "Hardened criminals will always have their excuses and alibis ready, but innocent and confused people will be at greater risk of being wrongly convicted and imprisoned," Liberty argues.
Liberty believes that taking away the rights of suspects will have no impact at all on the causes of crime, and in any event the right to remain silent is exercised by only a very small minority. (A Royal Commission study of 1983 showed that only 4.5 per cent of those interviewed used to the right and half of those were convicted.)
In research published last May, the all-party law reform group Justice reported evidence that the removal of the right to silence failed to assist in the fight against serious crime. Its research showed that crime clear- up and conviction rates in Northern Ireland had in fact declined since the removal of the right of silence five years earlier. Justice also said that trial judges were giving great weight to silence and in some cases treating it almost as a presumption of guilt.
The legality of the abolition of the right to remain silent has yet to be tested. Neither Ernest Saunders nor John Murray is exactly about the right of silence in the 1994 Act, but, says John Wadham of Liberty: "Both decisions could force the Government to repeal the 1994 legislation."
Independent Partners; request a free guide on NISAs from Hargreaves Lansdown
- 1 Nigel Farage: Me vs Russell Brand on Question Time – he's got the chest hair but where are his ideas?
- 2 Harry Potter fans can apply to the Hogwarts-inspired College of Wizardry
- 3 Jessica Chambers: 19-year-old woman 'doused with lighter fluid and burned alive' in the US
- 4 Russell Brand calls Nigel Farage 'poundshop Enoch Powell' in BBC Question Time debate
- 5 Orange Wednesdays are no more
Disgruntled RBS worker writes hilarious open letter to Russell Brand after anti-capitalist publicity stunt leaves him hungry
Shock poll shows voters believe Ukip is to the left of the Tories
Nigel Farage's approval rating hits 'record low' as popularity suffers in wake of Ukip sex scandal
Nigel Farage defends Kerry Smith 'ch***y' comment: 'If you are going for a Chinese, what do you say you’re going for?'
Ukip candidate jokes about 'shooting peasants' in racist and homophobic rant
Pakistan school attack live: Taliban kill at least 132 children in 'horrifying' massacre
iJobs Money & Business
$200 - $350 per annum: Carlton Senior Appointments: Managing Producer Office...
$125 - $225 per annum: Carlton Senior Appointments: San Fran - Investment Advi...
Up to £70,000 per annum + benefits: Sheridan Maine: Are you a qualified accoun...
Up to £65,000 per annum + benefits: Sheridan Maine: Are you a qualified accoun...
Day In a Page
A three-bedroom villa with self-contained flat, minutes from Lake Windermere
A deceptively spacious, beautifully presented Georgian home with 3000sq ft of living space and five reception rooms
A five-bedroom Victorian home with four receptions, superb gardens and paddock in Pembury
An eight-bedroom house on the south side of the The Green with cinema, wine cellars and summer house
This 17th century beauty is full of rustic cosiness, while the detached home office means you can also run a business
This five-bedroom red-brick beauty overlooks the village green and sits in just under two acres of land
Four exclusive apartments in a Grade II-listed former medical school with 2,275 sq ft of living space and 18ft ceilings
A five-bedroom terraced house on the popular Peterborough Estate, ideally located for both Eel Brook Common and South Park
A state-of-the-art farm-building conversion on the former Cliveden Estate, with 11,420sq ft of internal space, cinema and wine cellar
A three-bedroom, 15th-century cottage with original features in the picturesque village of Sissinghurst
A six-bedroom terraced house with large south-facing roof terrace, cinema room and wine cellar
A new seven-bedroom home built in Queen Anne-style with swimming pool and parkland views in Mortimer
A listed, four-bedroom farmhouse in the rural hamlet of Rushall with detached barn, four acres of gardens and paddocks
A first-floor flat with two bedrooms, a spacious reception room and communal grounds in a leafy part of London
A three-bedroom flat with a spacious rootop terrace and balcony, accessed from a private gated courtyard
A Grade II-listed pile with six bedrooms, stables and 39 acres of grounds in Standlake
A two-bedroom flat with boutique hotel-style interiors, close to the foodie haunt of West End Lane
A two-bedroom flat in a beautiful old vicarage, with many original features, close to the city centre
A three-bedroom 16th-century home with an aga kitchen, private gardens and heated outdoor pool, in Hadleigh
A three-bedrom home in sought-after Queen's Gate Mews, with Italian marble-finished bathrooms
Surrounded by glorious countryside in the village of Udimore, sits this impressive four-kiln oast and barn conversion
A five-bedroom house in the picturesque village of Kettlewell, north Yorkshire
An 18th-century former coaching inn with original staircase, open fireplaces and beams throughout
A Grade II-listed Georgian town house with three bedrooms and a south-facing courtyard, near Arundel Castle
Feel on top of the world at this über chic penthouse on the 37th floor of one of Europe’s tallest blocks.
A Grade II-listed Victorian villa with six bedrooms and two further cottages, all with spectacular sea views
A grade II-listed, Georgian cottage with mature 50ft garden, perfect for summer entertaining
A magnificent Georgian pile with turrets, seven bedrooms, a heated pool and four acres of gardens
Fairoak Farm has five bedroom suites, gym, outdoor swimming pool and golf course
Chic two-bedroom river-fronted flat with a private lift that delivers you directly to your home
A spectacular seven-bedroom Tudor pile, once owned by Henry VIII, with 18 acres of land
A seven-bedroom Georgian property previously used as a picturesque wedding venue
A split-level flat in a church conversion with two en suite bedrooms and 1,200sq ft of living space
A three-bedroom bungalow situated behind an impressive stone wall, £645,000
Windsor Castle overlooks this three-bedroom Victorian cottage located on one of Windsor's smartest roads
Chapel House is a former vicarage with nine bedrooms in the beautiful Upper Wye Valley
A five-bedroom B&B and separate owner's accomodation with potential for conversion
Enjoy summer by the Thames in this two double-bedroom converted warehouse in Rotherhithe village
A one-bedroom, luxury apartment with private gym and concierge service in Moorgate
A four-bedroom house in Hermitage Gardens with three reception rooms and landscaped gardens