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Column 275has been in operation for six years. I appreciate that it is sometimes difficult to find out what happens in Northern Ireland, so I gathered together some judgments and placed them in the Library and sent copies to Opposition Members who I felt were in particular need of them. I also referred to the matter in Committee and I shall not repeat the remarks that I made there. If hon. Members want to learn more about the Northern Ireland experience, I refer them to speeches made in Committee and to the judgments placed in the Library. I am disappointed that even at this stage no effort has been made to refer to the Northern Ireland experience.
The hon. and learned Member for Burton is Chairman of the Home Affairs Select Committee. I appreciate that it is sometimes difficult to know about practices in Northern Ireland, but it was perfectly open to the hon. and learned Gentleman to investigate and to take his Select Committee to Northern Ireland. He could also have called evidence and discovered what has happened in Northern Ireland over the past six years--and why there have not been complaints by practising lawyers or the judiciary in Northern Ireland.
Reference was made to Richard Ferguson, a former Ulster Unionist Member of Parliament for Stormont, but he has been practising in England since before the 1988 order was implemented, so his comments should be taken with a pinch of salt.
Government amendment No. 336 is a response to Lord Chief Justice Taylor. Northern Ireland judges have operated the procedure about which Lord Chief Justice Taylor complains for half a dozen years without any difficulty. However, if that amendment will smooth the passage of the Bill through another place, the change is not terribly significant. It is not of great importance whether the accused is advised by his lawyer, the judge, other persons or other means : it is important that the accused be advised.
I told the Minister of State in Committee that if any of the Bill's provisions were changed, changes should immediately be made also to the 1988 Northern Ireland order. It would be wholly unreasonable for the House to alter the Bill in respect of England and Wales without immediately doing the same for Northern Ireland. I am glad that amendment No 360 will do that, even though it means using the Bill to amend a Northern Ireland Order in Council. I entirely approve, and I thank the Government for following our advice and making sure that changes will apply simultaneously in Northern Ireland.
Mr. Howard : It is a pleasure to follow the hon. Member for Upper Bann (Mr. Trimble). I agree with practically every word of his speech. I can assure him that, even were I not following him in the debate, I should certainly have referred to the Northern Ireland experience and to the fact that this legislation is very closely modelled on and, indeed, virtually word for word identical with the provisions of the Criminal Evidence (Northern Ireland) Order 1988, although from the speeches before that of the hon. Gentleman one would have assumed that we were discussing a wholly novel constitutional departure for the United Kingdom. In fact, as the hon. Gentleman clearly and powerfully pointed out, it is nothing of the kind.
This group of amendments relates entirely to clauses 29 to 33 of the Bill, which would allow proper inferences to
Column 276be drawn from a person's silence in court or when asked certain questions by the police. As has been pointed out, they are often described as being concerned with the right to silence. Although that is a misleading description, I certainly accept that the matter-- though not a constitutional innovation or novelty in the United Kingdom--is of considerable constitutional significance. The description is misleading, because nothing in the Bill would take away any person's right to remain silent if he so chooses either under police questioning or in court. Under our law, that right is not, of course, an absolute right, as the hon. Member for Caithness and Sutherland (Mr. Maclennan) pointed out, referring to my track record. There are certain circumstances in which a person may be required to give answers--for example, when questioned by an investigator from the Serious Fraud Office exercising special investigation powers under section 2 of the Criminal Justice Act 1987, which built on the powers contained in the Financial Services Act 1986, for which I had some ministerial responsibility.
I confess that I cannot recall how the Liberal Democrats or their predecessors voted when those clauses came before Parliament, but no doubt the official Opposition did not comment on that during the debate because they fully supported the introduction of those powers and the removal of the right in those particular circumstances. Subject to those existing exceptions, the provisions in clauses 29 to 33 of the Bill will not compel any person to answer questions or penalise them for not doing so.
Sir Ivan Lawrence : If my right hon. and learned Friend is right in saying that the right to silence remains after these provisions--I agree that there is an element of a play on words--what kind of right is it when, if one decides to exercise it, one can be adversely criticised ?
Mr. Howard : There is nothing inconsistent in the two propositions. What criticism may be made will depend on the circumstances in which someone remains silent. There is a clear difference between the proposition that is already enshrined in part of the law, which was pointed out by the hon. Member for Caithness and Sutherland and which I have just pointed out, which compels someone to answer questions in certain circumstances, and the entirely different situation in which no one is compelled to say anything, but they know that their silence can be the subject of comment depending on the circumstances. That is an absolutely clear distinction and was underlined with considerable force by the hon. Member for Upper Bann.
Mr. Blair : The debate will proceed on a false basis if we have what I think in the end is a fairly semantic argument. No one has suggested that, technically, one is compelled to speak or that there is a legal obligation to speak, but if, when one has failed to answer questions, an adverse inference can be drawn, whatever the technical position the reality is that the right to silence has been interfered with. Quite honestly, the Home Secretary would do his case more justice if he admitted that and justified it rather than playing with words.
Mr. Howard : It is not a question of technicality, but of the right approach to this fundamental matter. The hon. Member for Upper Bann was right, but I agree with the hon. Member for Sedgefield (Mr.Blair) that that does not affect the fact that there are fundamental arguments to be addressed, and of course I will address them.
Mr. Harry Greenway : I am very interested in this and I am grateful to my right hon. and learned Friend for giving way. Will he explain to me the circumstances in which a judge will make comment or in which inferences can be drawn from someone's silence ? At what point in the proceedings could that happen ? I ask my right hon. and learned Friend to address himself to this point. It is said that criminals will know criminals, that people with a criminal record and people with criminal tendencies will be nailed by the removal of the right to silence, and that that is a substantial justification for it. Will my right hon. and learned Friend address himself to that and to the effect of the removal of the right to silence on the vulnerable, the weak and inadequate, and also intelligent people, who can also be intimidated by the circumstances of being questioned ? It is not just the vulnerable who will be affected.
Mr. Howard : To answer the first part of my hon. Friend's question directly, in normal circumstances comment would be made at the end of the trial. It would be open to the prosecution to suggest that an adverse inference could be drawn from the defendant's silence. It would be open to counsel for the defendant to explain away that silence. It would be open to the judge to make such comment as he thinks fit. It would certainly be open to the judge to comment that, in all the particular circumstances of the case, the jury might well decide that it was not appropriate to draw any adverse inference from the exercise of the right to silence by the defendant. And in the end--this is the absolutely crucial point--it will be for the jury to decide what weight to attach to, and to what extent it is appropriate in the particular circumstances of the case to draw any inference from, the silence.
Dr. Robert Spink (Castle Point) : Will my right hon. and learned Friend explain what are the circumstances in which a defendant could use the right to silence without it carrying an adverse inference for the defendant ? That would help to explain my right hon and learned Friend's case, with which I agree entirely.
Mr. Howard : There is such an infinite range of circumstances that it is difficult to pick out particular examples, but it might well be the case that, in a particular set of circumstances, if someone was feeling unwell, was confused or not in a position to give a proper account in answer to questions that were put to him, the judge might say to the jury-- though it would always be a matter for the jury--"You may well think that, in all the circumstances of this case, having regard to what you have heard, it would not be right to draw any adverse inference from the silence of the accused in this case." But in the end, having heard all the evidence, it is a matter that the jury would be entitled to take into account.
The matter derives its origins quite apart from the criminal law review committee, to which the hon. Member for Sedgefield referred : although clauses 29 and 30 of the Bill are, for all practical purposes, exact replicas of the
Column 278draft clauses in the Criminal Law Revision Committee's report, the provision finds its origin in the Criminal Evidence (Northern Ireland) Order 1988. That order was made in October 1988 and came into effect in December 1988 and, as we heard from the hon. Member for Upper Bann, it has operated to good effect and without difficulty since then. When the order was introduced, my predecessor--my right hon. Friend the Member for Witney (Mr. Hurd), now the Foreign Secretary--gave an undertaking that the legislation on this subject would be introduced for England and Wales at the earliest opportunity after the report of the working group that he had set up had been received.
There is therefore a respectable history to the matter. It is not something that has been plucked out of the ether by me or by the present Government. It is true that a minority and not a majority of the royal commission recommended that changes of this kind should be made, but it is also true-- no one has yet commented on this significant fact--that a majority of the judges who gave evidence to the royal commission were in favour of such a change.
We propose simply to remove the artificial and outdated restrictions which prevent a court or jury from hearing about a person's silence and taking it into account in reaching a verdict. Indeed, our proposals have accurately been described by my hon. Friend the Member for Woodspring (Dr. Fox) as a freedom of information Act for juries.
Mr. Ashby : I have been following the debate with great interest and a number of very important points have been made. However, I do not entirely agree with my right hon. and learned Friend. What concerns me and a number of others is that when someone is arrested there is always a great deal of confusion and the person may be wholly innocent and completely astounded. Indeed, I can think of an incident that happened only a couple of weeks ago that would give rise to such a situation. If we are going to start playing around with the burden of proof--I agree that we are talking not about the right to silence but about the burden of proof--should it not be within the confines of the Police and Criminal Evidence Act 1984 and relate only to tape-recorded interviews ?
Mr. Howard : I shall deal with that point in a moment when I speak in detail to the amendments, but, in answer to that question, I can say that, first, the proposals do not amount to a change in the burden of proof; it will still be for the prosecution to establish the burden of proof in every case. Secondly--this is the critical point--there may well be circumstances in which someone is confused, as my hon. Friend described, in a way that should properly be taken into account in assessing what inference should be drawn from his silence and what weight should be attached to it. That is precisely what will happen ; it is precisely how the silence will be taken into account and it is precisely the type of factor that the jury will be left to decide.
There has been some questioning of the extent to which the change will make a difference. The findings of the Royal Commission on criminal justice contained the following paragraph :
"In the view of many police officers, a significant number of suspects, by refusing to answer questions, seriously impede the efforts of investigators to fulfil their function of establishing the facts of the case. The initial aim of these suspects may be to avoid being charged but, if this is not successful, they may subsequently fabricate a defence which will not be revealed until their trial, at which point it may be impracticable to investigate and detect the
Column 279fabrication. Alternatively, they may remain silent, offer no explanations, and yet try to discredit the prosecution evidence or intimidate witnesses or victims in order to deter them from giving evidence. By such means, some criminals are, in the view of the police and many others, taking advantage of a feature of the criminal justice system left over from a past era when there were far fewer safeguards to protect the defendant than there are today". The royal commission also found that it was part of the experience of police officers that
"although most people who are arrested do answer questions inviting an explanation of evidence against them, a considerable number of experienced or professional criminals do not".
A recent survey by the Association of Chief Police Officers found that offenders with five or more previous convictions were more than three times as likely to remain silent in police stations than those with no previous convictions.
Mr. Mullin : Does the Home Secretary agree that the category of people most likely to claim the right to silence at present are police officers charged with conspiring to pervert the course of justice ?
Mr. Howard : I would not agree with the hon. Gentleman on that point, but, of course, any changes that we make would apply equally to that category of defendant in which the hon. Gentleman has a particular interest and to any other category of defendant, so it may yet be that, on reflection, we shall have the support of the hon. Gentleman in the Lobby tonight.
Mr. Howard : A minority of the royal commission concluded that it would be right to change the law so that inferences could be drawn from an offender's silence in relevant circumstances. The Government agree with that minority view. We believe that it is reasonable to expect an accused person to offer an explanation of circumstances that appear to be incriminating and that if he does not do so there is no reason why a court or jury should be prevented from taking account of his silence when considering the strength of the case against him.
Mr. Hoon : The right hon. and learned Gentleman has repeatedly talked about the jury being able to reach a decision in the light of the defendant's failure to give evidence. What has he to say about the direction that a judge should give in such circumstances ? At present, if a defendant chooses to exercise what has been described as the right to silence, the judge will indicate to the jury that it is a perfectly proper constitutional position for the defendant to adopt. Under the rules proposed by the Home Secretary, what indication is the judge supposed to give to the jury ? Does the Home Secretary accept that, if under the proposals, the judge gives a direction to the effect that the right to silence has been exercised, in most jury trials it will be tantamount to an indication from the judge that he is extremely unhappy with the defendant's case ? Will not that lead many juries to conclude that they should convict ?
Mr. Howard : I certainly do not agree with the hon. Gentleman's final point and I am surprised that he made it. Although his experience of the courts might be a trifle more recent than mine, I am sure that he will share my experience that juries are at least as likely to reject such indications from judges as they are to accept them.
Column 280However, by way of a direct answer to the hon. Gentleman's question, the position is this : as a result of the Government's amendment to which I am about to refer, the jury will have seen explained to the defendant the fact that, if he chooses to remain silent, an adverse inference could be drawn from his silence. The jury will then be told by the judge in his summing up that it is open to them to draw such an inference, but that the nature of that inference and the weight that they attach to it will depend on the circumstances of the case. As with every other circumstance of the case, the judge will be able to express his view to the jury, but he will tell the jury--as he is presently obliged to do in relation to every other circumstance--that, in the end, it will be for the jury to form their own view and for them to decide. Therefore, the matter will be treated in precisely the same way as every other relevant circumstance and every other relevant piece of evidence.
I deal now with the Government amendments to clause 30, which has already been described pretty accurately by the hon. Member for Upper Bann. Government amendments Nos. 333 to 340 and 355 and 356 would make a minor change in the procedure while leaving the basic effect of the clause unchanged. They deal with concerns that have been expressed by the Lord Chief Justice. Contrary to many reports, he has consistently supported the principle of drawing inferences from silence, but has expressed concerns about the procedure that is presently embodied in clause 30.
The amended clause, like the present one, will ensure that the court can draw proper inference from the accused person's silence in court, but, instead of calling on a defendant to give evidence, a judge or magistrate would satisfy himself in the presence of the jury that the defendant was aware of his opportunity to give evidence and the possible consequences of not doing so. Lord Taylor told me that he was content with the changes that the Government amendments would make to clause 30. As the hon. Member for Upper Bann said, amendments 357 to 360 would effect equivalent changes in the corresponding Northern Ireland legislation.
Before I finish, I shall deal briefly with some of the other amendments. With regard to amendments Nos. 249 and 250, it is surely entirely illogical to limit provisions to proceedings triable only on indictment. Rules that are just when a serious offence is being tried cannot be unjust when a lesser one is being tried, or vice versa. I welcome the support of my hon. and learned Friend the Member for Burton (Sir I. Lawrence) for the main thrust of our proposals, but, with reference to his amendments Nos. 319 and 313, I disagree with the proposal that inferences under clause 29 should not be drawn at the committal or transfer stage. It is important that the court sees the whole prosecution case when deciding whether there is a case to answer. The amendments would allow "ambush" defences at committal without allowing any inferences to be drawn as to their veracity, in view of the fact that the same line of defence could have been advanced at an earlier stage.
I believe that the amendments that would impose compulsory safeguards, such as tape-recording or access to legal advice, before any inference could be drawn are unnecessary. The police are required to observe the safeguards laid down in the codes of practice issued under
Column 281the Police and Criminal Evidence Act 1984 whenever they interview an arrested person. There is no special need to make the application of clauses 29 to 33 depend on the observance of those safeguards, as proposed in amendments 237, 245 and 253. I believe that it should be for the courts to decide a defendant's guilt or innocence on the weight of the evidence put before them, and to draw such inferences as appear proper, as they would for any evidence obtained by the police.
Mr. Blair : The Opposition amendments and the amendments tabled by the hon. and learned Member for Burton are designed for the same effect--to place safeguards so that in effect such inferences can be drawn only at the police station--but is the Home Secretary not aware that his proposal would go wider than that, and deal with the time before the suspect arrives at the police station, before the Police and Criminal Evidence Act safeguards come into effect
Mr. Howard : I was about to deal with that precise point, with reference to amendments Nos. 252 and 314. I disagree with the proposition that inferences should be restricted to the period after cautioning. Sometimes it can be sensible to draw an inference from what a suspect says or does not say when first encountered by the police in suspicious circumstances. Courts will be able to draw inferences only from a failure to mention a fact that the defendant could reasonably have been expected to mention.
That approach is entirely similar to the idea that a person's comment at that stage should be taken into account. That was another recommendation of the royal commission, which led to its further recommendation, which we accept, that any such admission should be put to the suspect at the beginning of the first tape-recorded interview.
Finally, amendment No. 320, tabled by my hon. and learned Friend the Member for Burton, would provide that an inference drawn from silence under clause 29 could not by itself provide that a person had a case to answer. My hon. and learned Friend said that he had not been given a satisfactory explanation of why the amendment was unnecessary. It is unnecessary because clause 33(3) already provides :
"A person shall not be committed for trial, have a case to answer or be convicted of an offence"
on the basis of an inference from silence alone.
My final recommendation to the House is that the amendments tabled by my hon. and learned Friend and by the Opposition are not necessary, and should be rejected. I invite the House to accept the amendments in my name and to reject any others that may be put to the vote.
Mr. Blair : We will press the amendments to a vote, first because we do not believe that the Home Secretary has adequately justified the abolition of an important fundamental principle of British law--a constitutional principle upon which people are entitled to rely. Our second reason is that the Government proposal, without any proper safeguards, will go far further than anyone has ever recommended on the abolition of the right of silence.
It may be argued that the phrase "the abolition of the right to silence," is not technically accurate, but if people are to be at risk of an adverse inference being drawn if they do not speak, they will in fact be under pressure to speak, whatever the technical position may be. The question is
Column 282whether that is right. To abolish the right to silence with no proper safeguards, which goes further than even the minority report of the royal commission, is not only wrong in principle but foolhardy and the House will regret it. We should therefore reject the proposal tonight.
Mr. Richard Shepherd : I believe that I am the only non-lawyer to speak on this group of amendments. I do so with the greatest diffidence, as hon. Members will understand, but I want to make clear what my perceptions of my country are. English law has always had at its heart the right to silence.
Lawyers may say that I am misappropriating that term, but it is fundamental to my perception that no inference may be taken from silence. I know that an extension has been made into fraud cases, and that that is now under challenge in the European Court. We shall see whether that law will stand that test.
Instinctively, as a Conservative, I would argue that the burden of proof for such a significant change lies with those who wish to initiate that change. I have not heard any arguments which conclusively demonstrate why the change is imperative. Therefore, as a Conservative, I stand by that right, and I say that the case has not been proven. I would go with the three royal commission reports on the matter, which we seem so eager to set aside.
I call out passionately for conservatism in such matters. When I think of my view of my country--that is all that we can express on such occasions--I think of Sir Thomas More's innocence protested by his silence. I see that principle march through our history ; I watch how the world is changing fervidly ; I see the same principle instituted in the constitution of the United States, drawing on our own experience. Are we so lightly to set it aside for the sake of the exigencies of the present, and our current fear of rising crime ? That rule has stood us well in good times and in bad. In the placidity of the 1950s, no one argued that we should do away with it. In the turbulence of other times, no one insisted that we should do away with it. We should have more confidence in our systems. In my view, the Government have not demonstrated the burden of proof that, in the face of the royal commission reports, we should make such a change.
Question put , That the amendment be made :
The House divided : Ayes 256, Noes 283.
Division No. 202] [8.07 pm
Abbott, Ms Diane
Adams, Mrs Irene
Ainsworth, Robert (Cov'try NE)
Anderson, Ms Janet (Ros'dale)
Beith, Rt Hon A. J.
Benn, Rt Hon Tony
Bennett, Andrew F.
Bray, Dr Jeremy
Brown, Gordon (Dunfermline E)
Brown, N. (N'c'tle upon Tyne E)
Bruce, Malcolm (Gordon)
Campbell, Mrs Anne (C'bridge)
Campbell, Menzies (Fife NE)
Campbell, Ronnie (Blyth V)
Campbell-Savours, D. N.
Carlile, Alexander (Montgomry)