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Column 263by saying that there should be a greater and more mutual disclosure of the prosecution and defence cases. We would certainly agree. It is a sensible recommendation, and it goes a long way towards dealing with the ambush defence problem.
It is true that the minority of royal commission members disagreed with the majority's conclusions. It is important, however, to understand the terms in which the minority decided that the right to silence should be abrogated. I disagree with the conclusion--it is a matter of principle--but it is important to understand their limits set on the amount to which that right should be abrogated. The report states :
"Those who support a modification of the right to silence" that is the minority
"argue that such a step would not lead to a weakening of the protection provided for the innocent and vulnerable. The safeguards of PACE and its codes are already significant and might be extended, for example to allow suspects who are emotionally upset the opportunity to postpone an interview. Suspects may already ask for a second interview if they wish to retract or modify anything said earlier. Access to free legal advice is, in itself, a valuable safeguard . . . Much more use could be made of audio or video recordings"
and so forth.
The commission did not recommend that the right to silence be changed, and even the minority desired to do so only with additional safeguards in place. The Home Secretary and the Government tried to say that they were following the minority recommendation of the royal commission. It is important to point out, however, that that minority never contemplated abolition to anything like the extent that the right to silence would be abolished by the Bill.
For example, the minority did not conceive of the right being abolished prior to a suspect reaching a police station, which is a critical point, but envisaged that the right would be abrogated when the suspect was in the police station only if additional safeguards were in place.
Clause 29 of the Bill means that the right to silence is lost, even on questioning in the street. Whenever that issue has been raised, Ministers have said that there will be safeguards, because the Police and Criminal Evidence Act 1984 will apply.
The Secretary of State for the Home Department (Mr. Michael Howard) indicated assent .
The notion that safeguards within PACE will control all the circumstances of the abolition of the right to silence is false. It will not do so. PACE will apply only once the suspect is being interviewed at the police station. Even then, the Bill does not require that people should know roughly the nature of the charges against them, that they should have access to properly qualified legal advice, or even that adherence to the conditions of PACE is a precondition of admissibility. There will be nothing like the safeguards suggested by the minority in the royal commission report.
The danger of proceeding in such a way has been described again and again by many eminent Queen's counsel who are practising lawyers in the field and who
Column 264prosecute as well as defend. Richard Ferguson, the chairman of the Criminal Bar Association, who is a Queen's counsel and was a Member of the Stormont Parliament in the 1970s, said :
"The Criminal Bar Association strongly opposes any diminution of the right to silence. It will not help to convict the terrorist or the sophisticated criminal. They will hide behind their solicitors advice or the lack of it to argue reasonable grounds for not answering questions. It will increase the possibility of a wrongful conviction of the weak, the inarticulate and the confused." Surely, even if we differ on the question of principle-- whether the right to silence should be curtailed, and I do not believe that it should--it is wrong to abrogate the right without establishing any safeguards against abuse, given past experience and the judgment of the royal commission. It is not in the interests of the accused, but it is also not in the interests of the people who will conduct the questioning.
If the right to silence is abolished before the accused reaches the police station, one risks a descent into the old nightmares familiar to people who practised law in the 1970s--the allegations of police brutality, verbals and false confessions. There would be trials within trials, which would prolong criminal cases and cause the problems that used to be caused before PACE.
Mr. Harry Greenway (Ealing, North) : I have listened with care to the hon. Gentleman. He has only mentioned the effect on the confused and the weak of removing the right to silence. What about stronger people, or people who might be expected to be stronger ? What effect will it have on them ?
Mr. Blair : Mr. Ferguson dealt with that very question. He came to the conclusion--it was also the view taken by the Criminal Bar Association- -that the professional criminal will not be at risk. It seems to me that it is common sense that many professional criminals will try to rely on the right to silence. We must ask whether abolishing it will lead them to speak differently. The problem is that it is not the professional criminal who will be the most at risk but, as Mr. Ferguson says, the weak and the inadequate. It is irresponsible and dangerous to legislate without instituting safeguards.
The issue of principle is important here ; I shall deal with it briefly, because it was well canvassed in Committee.
It is not as if there is any strong evidence that abolition will transform the criminal justice system--that is not even the Government's case. Indeed, I was astounded when I came across the Minister's words in Committee. He said :
"We are not looking"
in making these changes
"for recognisable changes in rates of conviction."--[ Official Report , Standing Committee B, 1 February 1994 ; c. 401.] I should have thought that that would be the one justification for the clause. Abrogation of an otherwise fundamental principle of British law can be justified in circumstances in which one could say that there is a fundamental problem that can be dealt with only in that way.
The views of Mr. Roy Amlot, a very distinguished Queen's counsel and prosecutor, are also pertinent. Many practising lawyers at the Bar were surprised at the strength of his opposition to the Government's case. Recently, he wrote in a letter to The Times :
Column 265"Despite many years, in the past, of prosecuting as Treasury counsel, I believe that such a move to emasculate the right to silence is clumsy and unenlightened."
He goes on to suggest why abolition will not have the effect that the Government desire and why it is wrong in principle. In effect, he said--he has repeated that view since--that moves towards the abolition of the right to silence are moves towards the abolition of the presumption of innocence. That is a strong claim, but it is widespread. Such a step is wrong without sufficient cause, and it is in breach of the royal commission's recommendations.
There is something profoundly ironic about the fact that, although the royal commission was set up because of miscarriages of justice and concluded that an organisation must be set up to review such miscarriages and that the right to silence should not be abolished, the Government refuse to set up a miscarriages of justice review body, but have decided to abolish the right to silence. This is not merely wrong in principle ; it is doubly wrong that it should be done in this way.
I hope that the Home Secretary will make a reasoned case, and not simply a political speech. Every previous Home Secretary who raised the issue did so with some awareness of its constitutional sensitivity and importance. That was very much the hallmark of the debate when the right to silence was abolished in Northern Ireland. Whether removal of the right to silence is right or wrong, it is unquestionably deeply important. What concerns people more than practically anything else is that, in this case, the action appears to be being taken not after agonising thought and consideration but following a flick of political rhetoric at a party conference. We must hear a much more reasoned case tonight before taking such a step.
This is not the way to legislate. Indeed, it is not the way to do anything. In my judgment, if we abolish this fundamental constitutional protection without exercising very great care, our action will rebound, and not before long.
Sir Ivan Lawrence (Burton) : The decision to amend the right to silence in this way--in effect, to abolish it--was not the subject of a piece of political rhetoric that just came out of the air to impress an audience of Conservatives at a party conference. Indeed, this provision has for many years been on the brink of being introduced. For as long as I have been a member of the Bar, a number of very experienced lawyers have been thinking about the right to silence and urging its end.
I have been a practising barrister for 30 years, mostly as a defence lawyer, and I do not share the views of the hon. Member for Sedgefield (Mr. Blair). Nor do I share the views of the majority of members of the Criminal Bar Association or those of the majority of members of the Runciman Royal Commission. There is room for two views. I merely make the point that in this country a respectable body of opinion--I consider myself to be reasonably respectable--has for many years held that it is time to abort the right to silence. Many of the people who hold that opinion are in the judiciary and have therefore spent a lifetime hearing both sides of criminal trials. So the hon. Gentleman should not give the world the impression that my right hon. and learned Friend the Home Secretary pulled this proposal out of the air.
I appreciate and apply the "clear benefit and no detriment" guidelines set out by the hon. Member for Sedgefield. The "clear benefit" is the removal of an artificial nonsense. In ordinary life, the way in which a
Column 266person responds to an allegation against him may indicate whether he is guilty or innocent, but in a criminal trial the situation is wholly artificial as the right to silence means that the accused person need not respond at all, either when he is being questioned by the police or at his trial. No adverse conclusion may be drawn from his silence. Over the years, jurymen have said to me, "I would have convicted that bounder because I am sure he's guilty, but I didn't do so because the judge said several times, You must not convict this man merely on the basis of a conclusion from his silence.'"
There is another "clear benefit". Let me refer to something about which we are all massively concerned. Like the Runciman Royal Commission, we have spent a great deal of time considering miscarriages of justice. How did these arise ? They were the result of dishonest statements by police officers, going back, as the hon. Gentleman said, to the 1970s--indeed, to the 1960s. I refer to the false confessions, the verbals. Why did police officers verbal and invent false confessions ? Because they were frustrated by the right to silence. Just when they felt that they would be able to secure the evidence demonstrating a man's guilt, the rules of evidence and the rules of the court prevented them from asking the questions or getting the answers. [Interruption.] I do not for one moment justify any false activity. [Interruption.] I hope that Opposition Members will not be childish. For 30 years of my life, I have defended people pleading not guilty. I certainly do not defend any kind of police misbehaviour in connection with trials. However, I must make the point that if it is possible to remove the cause of such behaviour, there would be very substantial benefit in doing so.
Mr. Ashby : My hon. and learned Friend has cited the case of a juryman. Would not it be more accurate to say that that person was prepared to convict on the basis of suspicion ? Does not the abolition of the right to silence and the comments to be made by the judge amount to the judge's saying, "Members of the jury, you may now give weight to what is a suspicion and nothing else" ? My hon. and learned Friend has been in court time after time after time. Has not he said--indeed, I have heard him say-- to juries, "You should not convict on suspicion. You should convict only on evidence" ? Is not this exactly the point ?
Later in my speech, I shall make common ground even with the hon. Member for Sedgefield, although I shall be on the other side of the main line. We have had what is, in effect, an archaic and artificial distortion. We have had it for many years and for a very good reason : that we could not trust police officers always to make truthful statements. The right to silence represented some protection to an accused person in those circumstances. It was not a complete protection. The police could still verbal, but there was an inhibition deriving from the right to silence. The court could throw out an allegation that obviously did not fit all the sense or facts of the situation.
Column 267Now that we have tape-recorded interviews, there is no longer the same justification for fearing a police verbal. Where there is tape recording of an interview it is practically impossible to invent a false confession. A copy of the tape is handed to the defence, who can ensure that the police have not engaged in any falsification of it. All experience indicates that since the introduction of tape-recorded interviews trials have progressed on the basis of the other evidence rather than that of any verbal admissions. If the tape contains a clear admission of guilt--a clear confession--defendants plead guilty more often than they used to. That, too, is a "clear benefit". If more of the guilty plead guilty and are convicted we avoid the other miscarriage of justice--the acquittal of the guilty.
Mr. Chris Mullin (Sunderland, South) : Every sensible person would probably agree that the introduction of tape recordings represented a big and long-overdue step forward. However, it is perfectly possible for a person to be intimidated before the tape recorder is switched on. It is perfectly possible for the police to rehearse with suspects what they will say and, perhaps, do a deal with them--to release or agree not to charge girlfriends, for example. It was in such circumstances that the Guildford confessions were obtained. All those confessions would have been obtained had there been tape recordings. I refer to a remarkable case in the west midlands, where one might expect to find the pioneers in this area. Three people were persuaded to admit on tape that they had committed the murder of PC Salt even though they could not possibly have done so. They were in due course released.
Sir Ivan Lawrence : The hon. Gentleman is a well-known and greatly respected campaigner for the rights of those acquitted of serious crimes. The Guildford case took place before the tape-recording of interviews--I believe that tape recordings should be used for terrorist offences, too-- and before the Police and Criminal Evidence Act 1984, which substantially curtailed the freedom of the police and increased the powers of the courts to do away with any police activity that was suspect for the defendant.
I have no specific knowledge of the case that the hon. Gentleman mentions in Birmingham. However, what he is saying is attributable to police behaviour whether there is a right to silence or not. If police officers want to continue, without being provoked by frustration but for some other reason, to behave as the hon. Gentleman said, it will not matter whether the right to silence exists, so his point is irrelevant to the one that I am making. 7 pm
I have tabled a number of amendments and shall try to deal with them as quickly as possible. As I believe that we no longer need a right to silence because of the tape-recording of interviews, the trial will make more sense to a jury if we do away with the right to silence and rely on tape-recorded interviews. As the introduction of tape-recorded interviews is my reason for supporting the removal of the right to silence, it would be inconsistent and illogical if I were content to see a man lose the right to silence, having been interviewed without having his words recorded--hence amendment No. 316.
If interviews are to be adduced in evidence, they must be tape-recorded. My view is fortified by the growing
Column 268evidence that, in more and more cases, the accused is said to have confessed or made a statement that is inconsistent with his innocence before he reaches the police station where the tape recording machinery is. With the development of technology, I see little reason why police cars should not have voice-activated tape recorders, nor why police officers about to arrest somebody who may want to say something should not carry voice-activated tape recorders in their pockets. If somebody is alleged to have said something and it is not tape-recorded-- incidentally, I agree with the hon. Member for Sedgefield that with no Police and Criminal Evidence Act protection there is no opportunity for him to call a solicitor before being interviewed--the evidence of any admission or statement that he has made should not be admitted in evidence. Those are my views and they are also the views of the Committee of the Society of Conservative Lawyers, which submitted evidence of that kind to the Runciman Royal Commission. That is my reason for tabling amendment No. 316. I tabled amendment No. 319 because total nonsense is inherent in clause 29, which no one has yet explained to me as a mistaken view. The clause says, first, that a court may draw such "inferences" from the accused's failure to mention a fact relied on in his defence either at questioning before the charge or at the stage of charging. Secondly, it says that those inferences may be drawn in three situations : first, where the court is considering whether there is a case to answer--a prima facie case ; secondly, where there is no committal proceeding because the case is a fraud being transferred by another procedure to the Crown court ; and, thirdly, in a child assault case for which there are no committal proceedings because it is being transferred under the new procedure.
The nonsense is that, at the very stage when a submission of "no case to answer" is being made, the court can have no idea whether the defendant will rely on some fact for his defence because he does not have to disclose the details of his defence. So the clause asks the judge or magistrate to do something that he cannot possibly do. That is absurd.
If I am told that that is covered by the words in line 17 : "being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed"
and that no court could say that the accused could reasonably be expected to mention those matters, I would reply that saying something nonsensical and then saying that what has just been said could not reasonably be expected to happen is double nonsense. I may be wrong. I may have missed a simple explanation. But if I am right, it is odd that no one has spotted the absurdity before, because the Bill has gone through its Committee stage and has existed for months. I think that I know why that might have happened. Recently, I spent a week at a judicial seminar where judges are taught how to be better judges. Such seminars are part of the improvement procedures and the Judicial Studies Board has been organising good seminars. I took the opportunity to ask several people why they had not spotted the mistake and the High Court judges, circuit judges and the stipendiary magistrates all told me that they had not been sent the Bill to read.
It seems ridiculous that, when dealing with complicated, technical legislation, the Home Office does not automatically invite the class of person most able, by
Column 269experience, to help in ensuring that the legislation makes sense to consider the legislation. The one person who told me that the Bill had been read by her department was the Director of Public Prosecutions. If my point is right, although it was read the mistake was not spotted.
My fourth amendment is No. 320. On the face of it, the Government seem to intend that an inference adverse to the accused can be drawn from silence and that that should be capable of being the only evidence against him before committal for trial. No provision specifically states that silence is not enough to provide a prima facia case, that it can be added to other evidence to make such a case, but it cannot be relied on by itself. I expected to see such a provision in the Bill.
The Government may not intend that silence alone should make a prima facia case. I have heard my right hon. and learned Friend the Home Secretary say as much at Question Time. Unless my memory betrays me, that point was also made strongly by the Criminal Law Revision Committee when it recommended the abolition of the right to silence in 1973. Unless the Bill says that it is excluded, as it would be under amendment No. 320, a court somewhere might say, "We know that there is not much evidence in this case, but the fact that the man remained silent when we think that he should have said something is so suspicious and such a proof of guilt that we shall have this man committed for trial". If I am right, that point should be amended in the Bill.
Clause 30 deals with the accused's right to silence at trial. A judge should not have to put himself in the position of telling a defendant that he should go into the witness box, give evidence and be cross-examined, if an adverse comment is not to be made. That should happen only if there is no other way to get out of the predicament. It would be invidious for that to happen in front of a jury, but, even if it were done with the jury out of court, the accused may draw the conclusion that the judge is part of the prosecution rather than an independent arbiter of justice. The Lord Chief Justice has already spoken out strongly on that matter--more eloquently than I--and I hope that my right hon. and learned Friend will take that on board.
The simple alternative is that the judge says nothing. He leaves it to defence counsel and the defence solicitor to explain to the accused the consequences of not giving evidence. That is not a novel approach ; it happens all the time. In normal circumstances, no judge needs to tell a defendant the consequences of his going into the witness box and saying that the prosecution witnesses are liars, cheats or frauds and that if he does so he may put his character before the jury. That is always left to the defendant's lawyers--his barristers and solicitors--and it should be the situation in this case. The lawyers should be trusted to tell the accused--if they do not there will be substantial grounds for appeal--that if he does not say anything an adverse comment may be made by the prosecution, the judge or both.
My amendments Nos. 307 and 308 delete the offending passages in the Bill and my amendment No. 309 rewrites this important clause, first, to encompass the good features of the provision and, secondly, to add another constructive suggestion which applies where the accused is not represented by a solicitor or barrister. In such a case, the accused may need to be told that adverse inferences may be drawn from his failure to give evidence. He should be informed of that fact not by the judge, but by the clerk of
Column 270the court in the absence of the jury. If the accused person representing himself wants time to consider the position he should be given that time.
The measure is contained in subsection (3) of my new insertion. I hope that my amendment is more elegant than the confused jumble of words which appear in the present Bill, although it may not be. It is certainly less confusing and simpler. The remaining amendments relating to the clause--Nos. 310, 311 and 312--are consequential to that amendment.
Mr. Geoffrey Hoon (Ashfield) : In subsection (2)(c) of amendment No. 309, the hon. and learned Gentleman makes the proper point that when it appears to a court that the physical or mental condition of the accused makes it undesirable for him to give evidence the accused should be excused from giving evidence. But would not that formulation apply still more strongly in relation to an interview by police officers when the accused is first seen by those who are investigating the alleged offence ? If the hon. and learned Gentleman is to be consistent in his approach to these matters, such words need to be inserted in the Bill at a much earlier stage. Clearly, when people are represented before the court they are less at risk in terms of their physical or mental condition than when they are first interviewed by police officers.
Sir Ivan Lawrence : I am afraid that I did not hear the first part of the hon. Gentleman's remarks. I am sure that what he says is sensible. My right hon. and learned Friend will have heard what he said and will take it on board. I am unable to agree or disagree with the hon. Gentleman's remarks ; I was looking for the passage to which he referred.
Finally, I have an amendment to clause 31 which deals with the effect of the failure of the accused to account for objects and an amendment to clause 32 which deals with the failure of the accused to account for his presence elsewhere.
I can make my point very quickly. It reverts to the first matter that I addressed in my speech. The right to silence should be removed or modified only when the accused is protected by a tape recording of questions and his answers to them. That is in accordance with the provisions of the Police and Criminal Evidence Act which the House passed precisely in order to give that protection. Hence, I have tabled amendment No. 317 to clause 31 and amendment No. 318 to clause 32.
I am sorry if I have not pleased everyone. I have tried to be brief in my remarks. I hope that my right hon. and learned Friend will take into account the fact that, first, I support the general thrust of the legislation, but, secondly, I think that some improvements can be made to it to safeguard the interests of accused people in the way in which the House would wish to safeguard their interests.
Mr. Maclennan : The hon. and learned Member for Burton (Sir I. Lawrence) spoke for 23 minutes and said that he had been brief. I promise the House that my speech will be substantially shorter because I have had the advantage
Column 271of addressing these questions in the Standing Committee, unlike the hon. and learned Member. Although he found fault with the work of the Committee, most issues have been canvassed there extensively. I did not wholly agree with the hon. and learned Member that there are two views about the merits of the right to silence. I think that there are many more views than that. It is not for us to pick and choose in the House the merits of individual lawyers. When we come to consider whether to take such a fundamental step as is encompassed in the Bill, we should listen to the views of those to whom the Government have entrusted the task of reflecting upon the matter. This is not a Government who turn lightly or frequently to the device of establishing royal commissions. In fact, throughout the Government's term of office, it is notable that royal commissions have been resorted to rarely. The fact that that should have been the Government's approach in respect of miscarriages of justice shows that there was a very serious problem which could not be tackled effectively by the normal political devices of weighing the arguments that are canvassed in the heat of the moment.
Royal commissions are established in response to a serious public need for advice and we have before us the advice of two royal commissions which point broadly in the same direction. It is right to reflect on the oddity of establishing a royal commission focusing on miscarriages of justice--the reason for its existence was to tackle that problem--but yet not take fully on board or act upon its most serious core recommendation dealing with that question.
The royal commission was quite explicit and I think that it is worth reminding the House of the words that it used in coming to a majority conclusion--and it was not a narrow majority, but a majority of nine to two. Paragraph 22 on page 54 of the Runciman commission report states :
"The majority of us, however, believe that the possibility of an increase in convictions of the guilty is outweighed by the risk that the extra pressure on suspects to talk in the police station and the adverse influences invited if they do not may result in more convictions of the innocent."
It recommends retaining the present caution and trial direction unamended. The report continues :
"In taking this view, the majority acknowledge the frustration which many police officers feel when confronted with suspects who refuse to offer any explanation whatever of strong prima facie evidence that they have committed an offence. But they doubt whether the possibility of adverse comment at trial would make the difference which the police suppose."
I believe that to be the core recommendation of the royal commission about this matter.
Sir Nicholas Fairbairn (Perth and Kinross) : As a Scottish Member, the hon. Gentleman might know that that is already a law in Scotland under the Criminal Justice Act 1980. I do not know what he is complaining about. Why should it not apply to England ?
Mr. Maclennan : I prefer to address the arguments that were deployed by the royal commission which had the opportunity of considering the laws of Scotland as well. I certainly intend to say something about the more germane experience in Northern Ireland, where the law has already been amended.
I have two concerns. First, I am anxious that the change of law adumbrated in the proposal will have an effect on
Column 272the attitudes of the police to the significance of their efforts to extract comments from those who are apparently unwilling to give comments or explanations. I agree with the hon. and learned Member for Burton on the importance of the recording of evidence, but, unfortunately, the clause does not deal only with evidence that is capable of being recorded. It also deals with the possibility that the fact that no statement was made before an accused person was taken into custody may be the subject of adverse comment, which is quite unacceptable. Too much weight is being placed by the Government and the Home Secretary on the expectation that to change the law in the way suggested will make a significant difference to conviction rates. There seems to be very little evidence to support that. In Northern Ireland, where the law has been changed, the evidence is that the vast majority of those charged with more serious offences--those brought under the prevention of terrorism legislation--remain silent. The courts in Northern Ireland have not found that the change in the law has led to a significant change in practice by those who might be regarded as hardened professionals. My second anxiety was mentioned by the hon. Member for Sedgefield (Mr. Blair). It is likely to be the confused, the weak and the ill-advised who are the victims of the change in law. Those are the people who need the protection of a fundamental constitutional principle that has lasted a long time in this country. I do not find it easy to understand--I am genuinely puzzled--why a Government who proclaim their commitment to the basic principles of law and justice should hack at the roots of something that is so deeply imbedded in our criminal justice system and has survived for centuries. I am talking about the principle that no one should be under pressure to incriminate himself in court.
The Home Secretary has discussed the subject in the House before. He did so when he was a junior Minister at the Department of Trade and Industry. He began the process of eroding the right to silence in a number of measures, including the Financial Services Act 1986. He has an understandable personal track record of having hacked away at the roots of the tradition of the right to silence.
The Home Secretary said in those debates that he was taking away the fundamental principle of criminal law--the right of someone not to incriminate himself. He said that in the Chamber and admitted that it was a fundamental principle. I should like to hear him advance stronger arguments when he replies to the debate on why he now believes it is right to deal with the matter, not in the narrower context of the Financial Services Act, the Insolvency Act 1986, the Building Societies Act 1986 and the Banking Act 1987, but across the board. The House expects the Home Secretary's explanations for such measures to go further than those that he has given to party conferences.
Some countries believe that the issue is one of high constitutional import- -as the hon. Member for Sedgefield said--and is so important that it should be enshrined in a basic constitutional provision. The United States is a prime example. I believe that it is appropriate to enshrine something so fundamental to the protection of the innocent in basic law and I hope that we shall ultimately achieve that position. I recognise that that will require a substantial change--more than a change of Home Secretary within the present Government.
Column 273I have had the opportunity of canvassing my views at some length on other occasions. I shall not, therefore, delay the Home Secretary any longer. I greatly look forward to hearing what he has to say on the subject.
Sir Nicholas Fairbairn : I have some slight experience in the courts, not only in Scotland, but in England and abroad. I have never comprehended the concept of the right to silence, which is not a constitutional right
In this country, before the end of the last century, at different dates in England and Scotland, the accused--as I would call him, others might call him the defendant--was not allowed to give evidence. He was an exhibit. The right to silence was necessary because he could not give evidence. If it was alleged that he had said something, he could not claim that he had not said it because he could not give evidence and say that he had not said it.
Mr. Richard Shepherd : I ask my question with diffidence, but was not that policy to demonstrate clearly that the burden of proof lay on the prosecution ? It is for the prosecution to make, or demonstrate, the case and I may stand by my right to silence in the face of that demonstration. Therefore, the point made by my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) is misjudged in this context.
Sir Nicholas Fairbairn : Not at all--the person accused was completely deprived of the ability to deny what anyone alleged that he had said because he was not allowed to speak. He was just an object on view.
Sir Nicholas Fairbairn : Let me speak about the right to silence. Every citizen on this globe is required to give evidence. He can be called back from Australia, New York or anywhere else and be forced to give evidence on pain of contempt of court. That is true of everyone except the one citizen whose evidence it is essential to hear--the accused. I always thought it was ludicrous that the one witness whose evidence was important should have the right not to be heard. One of my hon. Friends and Opposition Members said that the weak, being inarticulate and confused, might convict themselves. But hang on a minute--suppose that the witnesses compelled to give evidence were weak, inarticulate and confused. The accused cannot complain, "You can't call that chap--he's weak, inarticulate and confused." The jury must make their own judgments about witnesses, and the accused is the principal witness.
Column 2747.30 pm
I propose the restoration of the law in Scotland as it was until 1928. When a person was arrested, they immediately had to record their account publicly, before a magistrate--before they went to the Barlinnie school of schooling and invented a defence. Unfortunately, the present Lord Chancellor said that that must not apply unless the accused consented, so lawyers go before the court and the accused does not need to give an account.
The law of Scotland was so sensible and easy until 1928, because the accused had to go before the magistrate immediately, to give his account of events before he got to any lawyer who could invent an account for him. The right to silence is a fallacious concept, and it is utterly wrong that the principal witness should be given the absurd and historically misunderstood right to silence.
Let us consider verbals. I have known hundreds of cases in which the police alleged that the accused had said something that he denied saying. Nothing that is unrecorded before a magistrate or an independent person should be admitted in evidence. It is only too easy to claim that the accused said, "It's a fair cop--I took it because I needed to buy a house." If one wants the police to be trusted, the courts to be respected and the accused to have fair rights as to what he did or did not say, there is a simple equation : the right to silence goes, in exchange for the necessity that nothing that the accused is alleged to have said can be produced in evidence unless it was recorded by an independent person. That would be a fair solution.
I am sorry that my remarks were all about England, but I thought that I should intervene.
Mr. David Trimble (Upper Bann) : I will not comment on the situation in Scotland and the speech of the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn), but I will refer to the speeches of the hon. Member for Sedgefield (Mr. Blair) and the hon. and learned Member for Burton (Sir I. Lawrence), which proceeded on an entirely false basis. In this context, references to the right to silence are wholly misconceived. The Bill does not affect the right to silence properly so called, which is the privilege against self-incrimination and means that a person shall not be compelled to give evidence against himself. Nothing in the Bill in any way changes that. It affects only what some people loosely and inaccurately describe as the right to silence.
The Bill relates to inferences to be drawn from silence and to whether or not the judge can comment on an accused person's failure to say anything. Glanville Williams, probably the most distinguished academic lawyer in England this century, described as wholly unreasonable the rule that a judge cannot comment on an obvious and relevant fact that the jury may take into account. No one ever said that juries must take it into account.
Most of the comments made about the right to silence will give a completely false impression to anyone reading this debate. I was appalled that it was even suggested that the presumption of innocence was in some way affected by the Bill. It does not change that, or the requirement that guilt must be shown beyond reasonable doubt. Those matters are not involved.
I acquit the hon. Member for Caithness and Sutherland (Mr. Maclennan), but it annoyed me that no reference was made to the experience in Northern Ireland. The Bill's provisions are word for word the same as those in the Criminal Evidence (Northern Ireland) Order 1988, which