Abandoning an ancient right to please the police

The writer is professor of law at the London School of Economics and a member of the Royal Commission on Criminal Justice.

IF, AS IS widely rumoured, the Home Secretary, Michael Howard, announces today that he has decided to abolish the suspect's right of silence in the police station, his decision will be not merely wrong in principle and futile in practice, but one that verges on the unconstitutional.

'The right of silence' is the ancient principle that neither the prosecution nor the judge can suggest to the jury that silence in response to police questioning is evidence of guilt. It is based on the presumption of innocence, and reflects the burden thrown on the prosecution to prove the defendant guilty, without any assistance from the defendant if he so chooses.

Two years ago John Major's government set up the Royal Commission on Criminal Justice. One of the specific issues included in the terms of reference was the right of silence. In its report in July, by a majority of nine to two, the commission recommended that the right be preserved. We quoted with approval the majority view of our predecessor, the 1981 Philips Royal Commission, that abolition of the right of silence 'might put strong (and additional) psychological pressure upon some suspects to answer questions without knowing precisely what was the substance of and evidence for the accusations against them'. Margaret Thatcher's government, in piloting the 1984 Police and Criminal Evidence Act through Parliament, accepted the advice of the Philips Royal Commission.

It is generally assumed that a government can accept or reject the recommendations of a Royal Commission. But the right of silence is an issue of fundamental principle on which the considered view of a Royal Commission, reached after a long process of consultation and reflection, must carry more weight than the conclusion of party politicians. Here the Home Secretary would be defying the view of not one, but two recent Royal Commissions, the second of which was specifically requested to advise on the matter. I believe this is not merely wrong, but wholly improper.

The matter is made considerably worse by the immediate context of the Home Secretary's decision. He is embroiled in a fierce battle with the police over the Sheehy Report. There has to be more than a suspicion that a decision to abolish the right of silence is simply a political stratagem to placate the police.

As Mr Howard's advisers must have told him, apart from loud cheers from the police, it is unlikely to produce much, if any, practical benefit. Abolition of the right of silence would not enable the police to force anyone to answer questions; nor would it be a criminal offence to be silent, but the prosecution and the judge would be permitted to suggest to the jury that silence was evidence of guilt. The minority of defendants who are now silent in the police station and who are acquitted would probably still be silent, hoping to get an acquittal in spite of adverse comment from the prosecution and the judge.

The study that has focused most precisely on this issue, based on more than 1,000 London CID interviews, suggests that silence has no impact on the likelihood of charging, except where the evidence is neither strong nor weak. In those cases 'where it was on the borderline, silence seemed to make a charge more rather than less likely'. The report concluded: 'Abolishing the right of silence might reduce the irritation felt by the police, but would probably do little to increase the number of successful prosecutions.'

The latest Royal Commission's Report (p54 para 19) says: 'Nor is there evidence to support the belief that silence in the police station leads to improved chances of an acquittal. Most of those who are silent in the police station either plead guilty later or are subsequently found guilty.' In other words, abolition of the right of silence would not have the advantages the police claim. The report warns: 'It is the less experienced and more vulnerable suspects against whom the threat of adverse comment would be likely to be more damaging.'

That the important principle of the right of silence should be set aside against the categorical advice of two Royal Commissions mainly for the sake of political advantage is a debasement of the criminal justice system.