The polarised debate on the right to silence has largely ignored the underlying factors that were already undermining its existence, and thus the potential for replacing it with something better. Indeed, the safeguards suggested by Lord Ackner could be put into effect under existing legislation.
The arguments in favour of abolition are of a moral nature. Innocent people, by and large, do not keep silent in the face of an accusation. The innocent's highest interest, and his most ardent wish, the philosopher Jeremy Bentham observed, is 'to dissipate the cloud which surrounds his conduct, and give every explanation which may set it in its true light; to provoke questions, to answer them, and to defy his accusers'.
It offends one's sense of justice that an accused should not only be free to say nothing but that juries should be told to ignore the commonsense inferences to which silence may give rise, when there are incriminating circumstances crying out for explanation.
Defenders of the right to silence say it is an instrument for the protection of the suspect in the police station. In practice, however, it is not an effective instrument because the police direct their efforts to persuading suspects to waive their right and tell what they know. Although an innocent suspect who is weak, confused or nervous would do better to keep silent, they are also the least likely to have the presence of mind to resist questioning.
The fact is that until recently only those few suspects who were exceptionally strong or experienced stayed silent. It was only under the Police and Criminal Evidence Act 1984 that there became real potential to change the low take-up rate of the right to silence, when, for the first time in English legal history, suspects acquired a meaningful right to legal representation in the police station. The presence of a lawyer allows the suspect to be made properly aware of the advantages of keeping quiet, and to receive the support needed for maintaining silence. In practice, the take-up rate of the right to silence has not greatly increased. Nevertheless, since the investigation of crime is heavily reliant on interrogation, the police have always feared that this strengthened right would hinder their battle against crime. That is why judges and the police have been pressing for curtailment of the right to silence.
The recent Royal Commission on Criminal Justice supported the right to silence. It also noted that about 90 per cent of suspects waive their right. But it showed little interest in the pressures caused by detention and questioning, or the likelihood that few of these suspects spoke wholly voluntarily. Faced with such a patchy defence of a largely illusory protection, the Home Secretary could be forgiven for concluding that its curtailment would not greatly harm the position of suspects.
We should not assume, however, that the new arrangements will be fair. In future suspects will be cautioned that failure to account for themselves to the police may be brought to the attention of the jury, who would be free to draw adverse inferences.
There is nothing wrong with expecting answers, provided the interrogation is fair. But one of the most basic requirements of fairness is that before having to defend oneself you should be told about the case to be answered. Yet a suspect will be expected to answer questions knowing only that he or she is suspected of having committed an offence. Without knowing the specific allegations and evidence against them, interrogations could degenerate into a one-sided process in which suspects' answers might well incriminate them.
This unfairness is not new, but it has been obscured by the notion that the right to silence offers adequate protection. However, the powers to enforce standards of fairness do exist. The 1984 Act empowers judges to exclude evidence, including that of silence, if its admission would be unfair. Thus, a court could decide that suspects' silence should be held against them only if they have been first given information about what the police have on them.
The police may object that this would enable guilty suspects to tailor their replies, and that suspects would interfere with witnesses. These objections mirror those made by defence lawyers who object to curtailing the right to silence. They have argued that if suspects were made to reveal their defence, the police would be able to fit the damning case around suspects' answers, or to intimidate defence witnesses.
Both suspects' fears and police anxiety are reasonable enough. Yet mutual suspicion and diametrically opposed aims are not unique to criminal investigations. They exist in commerce and politics alike. The key to a reasonable interaction in a hostile environment is that at no stage must one participant feel at a disadvantage compared with others. By allowing inferences to be drawn only when silence followed adequate information from the police to the suspect, the courts could ensure that co-operation works both ways in the police station.
Defence lawyers could put this into practice now. When a suspect is cautioned that inferences may be drawn from his silence, he could reply: 'I am prepared to answer your questions, but in fairness you should first tell me what you have against me.'
If the police declined, the defence could apply to have the suspect's subsequent silence excluded from the trial. If the judge did not accede to the request, the defence might insist that the suspect's statement be brought to the attention of the jury alongside his silence. If the defence could then persuade the jury of the reasonableness of the suspect's position, silence would be less likely to count against him.
Now that the demand for the co- operation of suspects is out in the open, we have for the first time an opportunity to insist that it is reciprocated by fair police co-operation.
The writer is a Fellow in Law at University College, Oxford.