Silence In Court!
When the right of silence was ended in Northern Ireland law five years ago, it was explained officially that this was not the establishment of a special, inferior kind of law, a law that was not quite British, because it was intended in the near future to proceed to an abolition of the right of silence in English law also.
This explanation was not said very loudly in England. And there was reason to suppose that there was no serious intent of abolishing it in England. That feeling was reinforced when a Royal Commission recommended that the right of silence should be maintained.
But the Home Secretary, emboldened by the Thatcherite revival, has now decided to disregard the advice of the Royal Commission and extend the Northern Ireland rules to England.
The ending of the right of silence seems to have made only a slight difference to the conviction rate in Northern Ireland. This was to be expected because all serious criminal trials there are held in special courts without juries, and judges have reason to be seen to be bending over backwards to be fair. They have to bear in mind that the public opinion which is watching them is a much more potent force than English public opinion is.
So slight has been the effect of ending the right of silence in Northern Ireland that the Chief Constable there made a speech a few months ago demanding an end to right of silence. That is, he behaved as if the right of silence was not already ended.
The Ulster Unionists (including their legal specialist, David Trimble, who is a bit of a liberal) wholeheartedly supported the ending of the right of silence, even though it was obvious that its practical effect would be slight. And so did those who are now the Ulster contingent of Kate Hoey’s Democracy Now.
They sold out their English heritage on the most trivial grounds – as an ideological expression of animosity towards the Republican movement – thus helping to reinforce the Republican case against British rule in the province while doing nothing of consequence to damage the IRA.
The present Chief Constable of Northern Ireland was not Chief Constable when the right of silence was ended, and he is not an Ulsterman. Perhaps he genuinely did not know that the right of silence had been ended, or perhaps be knew but treated the form in which it was ended as worthless.
Anyhow he did not mention that it had been ended in one form when demanding that it should be ended in another form. His speech amounted to a demand for a comprehensive reversal of the burden of proof. The Ulster Unionists supported this demand, and Kate Hoey’s little movement expressed no concern about it.
There is reason to suppose that the ending of the right of silence in England in the present Northern Ireland form would have very much greater effect than has been the case in Northern Ireland, because the special conditions in which the law operates in Northern Ireland do not apply in England. The random element in the jury system would be enhanced, and the scope for judges to incite juries would be increased.
The ending. of the right of silence revokes some principles which have been widely declared to be at the basis of English law as a guarantee of liberty, and to mark England off from “lesser breeds without the law”. The maxim that it is better that ten guilty men should go free than that one innocent man be convicted is gone. At a moment when English law has admitted to having convicted many innocent men, conviction is to be made easier. The Tory Party Conference demanded it, and few in the Labour leadership seem disposed to oppose it with any vigour.
The principle that in English law a person is innocent until found guilty, that it is entirely the business of the prosecution to prove guilt, and that nobody is required to make a case against himself, goes with the right of silence. Once the right of silence is ended, a defendant is required to prove his innocence.
“Why should anybody who is innocent refuse to answer questions put by the police?”, it is asked with a spurious naivete, as if English law was identical with the law in Toytown, and as if many innocent people had not lost ten or twenty years out of their lives because they failed to maintain a rigid silence while being questioned by the police.
In a system of law designed to bring out the truth in Court – a system in which the Court is itself committed to seeking the truth, and in which the questioning of suspects and witnesses preliminary to trial is not left to the police – it might be reasonable not only to refuse a right of silence such as has existed in English law, but to make silence an offence in its own right. But that kind of law has always been pejoratively referred to in England as “inquisitorial law”. It is the law of the “lesser breeds”.
It is a better kind of law for a democracy, and the innocent are less likely to be convicted under it, but it is most decidedly not English law. English law is adversarial. It is a game played out, before a judge whose primary business is to see to it that it is played according to a highly intricate and often sophistical set of rules.
On the one side the police have great latitude in preparing the prosecution and withholding information from the defence, and on the other side the defendant is not supposed to incur any legal disadvantage from staying silent, leaving it to the police to try to make a convincing case against him and to his lawyer to pick holes in that case. It is an expensive and time-wasting kind of law, and very hit-and-miss so far as establishing the truth of the matter goes.
English law, the Common Law, adversarial law, was law for the gentry in the first instance. It was later extended to the middle class. Only very recently was it extended to the working class. Despite superficial modifications it still retains its original character. It was workable as law for the democracy as long as the mass of the people were deferential towards their betters – overawed or intimidated as the case may be.
Only a generation ago summary “justice” was still tolerable to a great portion of English society, and a policeman’s word was taken to be gospel even when as an onlooker in the public gallery of a magistrates’ court you could see that he was lying through his teeth. In those days law for the masses was tacitly understood to be a crude device for maintaining order, and that it would not do to probe individual cases too closely.
Due to the loss of deference that kind of justice fell apart, and vulgar commoners began to see themselves as having rights no less than their betters had.
The great majority of people subjected to police questioning still do not avail of the right to silence. But it is asserted that the minority who do include all the serious criminals. And it is no doubt a very serious matter when common criminals begin to play the law in a way that only gentry were intended to.
But the remedy is not to revoke the right of silence while retaining the general framework of adversarial law. That would weaken the defence and encourage the police to improve on their already impressive record of miscarriage of justice.
If the system of Common Law is proving to be inadequate to the requirements of justice in a non-deferential democracy – and who can doubt it – the thing to do is to get rid of it and set up a more suitable system.
340 years ago Parliament voted to abolish the Common Law and replace it with Mosaic Law, but Cromwell overruled it in the interests of the gentry. Abolition of the Common Law then would have been a leap in the dark. But it is not so today, when a system of non-adversarial law derived from the Code Napoleon has been functioning in many continental countries for over a century.
The Home Secretary wants to import part of the Continental system in distorted form – to have an inquisitorial system conducted by the police. That would be the worst of all possible systems. If we must have part of the inquisitorial system, let us demand to have all of it.
This article appeared in November 1993, in Issue 38 of Labour and Trade Union Review, now Labour Affairs. You can find more from the era at https://labouraffairsmagazine.com/very-old-issues-images/ and https://labouraffairsmagazine.com/very-old-issues-images/m-articles-by-topic/.