RIGHT TO SILENCE:
THE CRIMINAL JUSTICE AND PUBLIC ORDER BILL 1994
The following article from 1994 was written by the HSA's then Legal officer, dealing with the changes in the law regarding a suspect's right to silence, and how it is likely to affect hunt saboteurs.
THE RIGHT TO SILENCE
We all know that the CJB was designed to criminalise sabbing and other forms of direct action by upgrading civil laws of trespass into criminal offences. However its effect on hunt sabs does not end here. One of the most controversial changes to criminal law which the Bill proposes is the right to silence. These changes will have a direct effect on you every time you are arrested and may have severe repercussions for any resulting court cases. The Bill is due to complete its legislative passage when Parliament reconvenes in mid-October and to receive Royal Assent at the start of November, so unless the Government falls between now and November these provisions will become law (Editor's note: at the time of publication the law is now in force). The new law on the right to silence should be in force in March 1995.
THE PRESENT LAW
Traditionally a suspect has had a right to silence. This involved two propositions:-
(1) He could not be compelled to answer questions at any time, whether in the police station or in court He was not guilty of' any offence if he failed to do so.
(2) If he exercised his right of silence the court could not treat this as being evidence that he was guilty.
The first of these rules continues to apply. The Bill will virtually abolish the second.
THE NEW LAW
Clause 34: The essence of this clause is that it' you fail to mention a fact that you later rely on in your defence either when being questioned by police or at any time before you are charged "the court may draw such inferences from the failure as appear proper". This clause also applies if on being charged or officially informed that you might be prosecuted for it you fail to mention any fact that you later rely on.
Clause 35: This clause deals with giving evidence at your trial. Basically if you choose not to give evidence at your trial or having been sworn refuse to answer any questions, the court can draw whatever inferences they see fit.
Clauses 36 & 37: The essence of these clauses is that once you have been arrested, if a copper asks you to account for certain incriminating circumstances, and you refuse or fail to do so, then the court may draw such inferences as appear proper.
Following a fight, ..... is arrested nearby. His shirt is badly torn. He refuses to answer questions, despite being told by the police that they think his presence in the area, and his torn shirt are incriminating, and being told to account for them.
a) If at the trial he gave evidence that he was in the road repairing his sab van, and was wearing a torn shirt because he did not want to get a good one dirty, clause 34 would apply. His failure to mention these facts earlier to the police could make the court more reluctant to believe his story.
b) If he never puts forward any explanation of the torn shirt etc., clauses 36 & 37 would apply. His failure to account for the incriminating circumstances when called upon to do so by the police could count against him. Also, his failure to answer questions in court could count against him under clause 35.
The overall effect of the Bill is that in future if you exercise your right to silence the court will usually be able to inter guilt. The prosecutor. judge and any co-defendant may all comment dversely to the jury on your silence. However. silence on its own does not prove guilt. A person cannot be convicted, or even have a case to answer. solely because of an inference under clauses 34 to 37. Indeed in some circumstances it may still be possible to remain silent without inferences being drawn, for example:
- if questioning by other than by the police
- if you have not been cautioned at the time
- if you have some good reason for not answering questions.
At this stage, like all provisions in the Bill it is unclear how the new rules will be applied in practice. The Criminal Law Committee of the Law Society have issued advice to solicitors regarding the Bill; they are basically as follows:
a) If you are guilty of the offence but are unsure how much evidence the police have against you. the safest advice is to remain silent.
b) A judge will not always allow comment to be made about your silence. The less articulate you are, the less able to make a reasoned choice the more likely that a judge will not allow comment to be made.
c) Talking to the police could pose a greater risk of wrongful conviction if for example you are confused or in an emotional. highly compliant state of mind, or previous experience of the coppers concerned leads you to believe that the interview may be unfair or place you under undue pressure.
d) There should be no comment at court about your silence when there is an innocent explanation, for example you wanted to protect the identity of another person or were reluctant to admit having done something embarrassing but not illegal.
e) Clause 34 allows a court to infer guilt it' you rely upon a fact in your defence which you had not mentioned earlier, either when questioned or on being charged. There may be an advantage to remain silent during the interview and then make a considered statement on being charged of the tracts of which you intend to rely. This could either be a statement prepared by your solicitor in the cells or later, or one that you have written yourself. The police are obliged to give you pen and paper if you request it.
The effect of the Bill is that silence is probably no longer the best thing to do when you are arrested, but think carefully about what you do say and always speak to a solicitor before you are questioned and ask for their advice. BUT remember it is your decision whether to remain silent or not, not theirs.
A good solicitor will give you enough information to make an informed decision. (Never use a duty solicitor!)
Reproduced from HOWL (No 56, Winter 94) - magazine of the Hunt Saboteurs Association.
BM HSA, London, UK. WC1N 3XX
Telephone: (+44) 0845 4500727