National Blog of New Zealand

Upon reading my local paper I noticed an editorial by Pat Booth suggesting that we ought to review the ‘right to silence’ afforded to defendants in criminal trials.

Nemo tenetur seipsum accusare, that no man is bound to accuse himself, does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance as promulgated by Lord Mustill in R. v. Director of Serious Fraud Office, ex parte Smith (1992). The contemporary form of these rights stems from Judges Rules 1912 issued by the Kings Bench to the Police force concerning how they conducted criminal procedure, ending beating and torture. Its historical origins are a little more confused, it is believed initially to have come in response to the practices of the Court of Star Chamber where the accused were required to answer questions without knowing what they were accused of. It acts to protect defendants from torture and compulsion and the system from false confession.

Upon his retirement the late Kevin Ryan QC suggested to the surprise of the legal community that the right was designed for an illiterate populous quite different from contemporary society. His comments seemed to stem from the recent number of high profile child abuse cases, in particular the Kahui debacle in which the family closed ranks and refused to answer questions. My thoughts on this one were that both Mr. Kahui and Ms. King ought to have been committed to trial as co-defendants meaning you’d likely ensure at least one conviction preventing them from pointing the finger at one another. As we know hard cases make for bad law and one can only hope Justice Minister Simon Power keeps this in mind with his upcoming review into the right.

Sensible Sentencing suggests the removal of this protection, but then I’ve never really had much time for an organisation which advocates for the removal of the ‘cab rank rule’ but sees the reinstatement of the death penalty in New Zealand as a viable option for combating crime. Removing protections for competent and adequate representation while attempting to reinstate the death penalty is a little sickening.

I think they real issue is that the invocation of the right to silence by a defendant cannot itself be bought as evidence at trial from which a jury may infer guilt. You may ask if one has nothing to hide why would one need to avail themselves of such a protection – and perhaps rightly – this fact should be admissible. However, a jury must still be satisfied beyond a reasonable doubt and in my mind drawing inference from such a confession is dangerous and may threaten to erode the cornerstone of criminal justice that “it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer.”
I would not support granting Police powers to question akin to those given to the SFO under ss 5, 9, 45 of the Serious Fraud Office Act 1990.

If an individual refuses to answer, do we torture them, imprison them or just fine them. Do we want a state where you can be punished for simply failing to answer questions to the standard set by and demanded by investigators . What questioning is appropriate? Vesting such powers to the police poses much scope for abuse.

We mustn’t forget the criminal defendant is pitted against what Gary Gotlieb terms the “might of the state” – the job of prosecuting criminals can and has been done for over 100 years with this liberty intact. I can’t see how a system which requires an admission of guilt to ensure a conviction as being sufficiently robust to be vested with the power to imprison, fine and otherwise restrict individual freedom.