Innocent until proven silent

THE SO-CALLED right of silence, sneers the Home Secretary in those Tory conference clips, the so-called right of silence . . . But what's so-called about this right? It's just an ordinary, fundamental right, which comes in two parts, one of which is to be severely undermined next spring.

The part that will remain unaffected is the right of silence at trial. I do not, as a defendant, have to enter the witness box. It is fundamental that the prosecution must make its own successful case.

If I choose to stay silent, the judge must direct the jury along the following lines: 'The defendant does not have to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt. On the other hand, there is no evidence from the defendant to undermine, contradict or explain the evidence put before you by the prosecution.'

The trial of Jeremy Thorpe was a famous case of not giving evidence. George Carman, QC, never called his client, and the jury decided that the prosecution had failed to make its case. The charges had been serious, but nobody accused Mr Thorpe of attempting to thwart justice by not giving evidence in court.

The first part of the 'so- called' right of silence is the right to remain silent in the face of police questioning. Once again this is based on a fundamental principle, that 'though every citizen has a moral, or if you like social, duty to assist the police, there is no legal duty to that effect.'

This is why, if the fact of a defendant's staying silent under police questioning is made known to a jury, the judge, as things stand, is required to warn the jury that: 'Any person suspected of a criminal offence or charged with one is entitled to say nothing when he is asked about it. You must not hold his silence/refusal to answer questions against him.'

It is this protection of the defendant that is to be dropped. From spring, the prosecution or the judge may well draw attention to a defendant's refusal to answer questions in a derogatory way. And that is why the wording of the caution has to be changed.

At present, when I become a suspect (whether or not I am under arrest) a caution is administered as follows: 'You do not have to say anything unless you wish to do so, but what you say may be given in evidence.'

When the Royal Commission considered and rejected the idea of amending the right of silence, the minority (two out of 11) thought that a new caution might go roughly thus: 'You have the right to remain silent, but if you fail to answer a relevant question or to mention a fact which you later rely on in any trial, a court or jury may conclude that your silence supports the evidence against you.' Note that this draft caution sets out by reminding the suspect of a right, not a so-called right. You have a right, but you exercise it at your risk.

The new formulation announced last week is an expanded version of what the commission rejected: 'You do not have to say anything. But if you do not mention now something which you later use in your defence, the court may decide that your failure to mention it now strengthens the case against you. A record will be made of anything you say and it may be given in evidence if you are brought to trial.' And so the caution grew from 22, to 43, to 60 words.

The third version is hard to grasp, because it seems to imply that, at the moment of my becoming a suspect, I must think out a complete case for my defence, and log it with the police. But I do not perhaps fully know what I am suspected of.

Certainly, in a case that involves anything complex, I do not expect to know what will count as relevant to my defence. So my instinct would be to find a lawyer and ask him just what a full defence would be. But if I delay answering police questions, I've been warned that this may count against me in court. When Michael Howard asserts that the innocent have nothing to fear, he assumed that all innocent suspects are trained lawyers - lawyers and prophets indeed, with a gift for divining a prosecution case in advance.

The commission took a more realistic view of fear than the Home Secretary, and noted the following potential reasons for innocent suspects remaining silent: 'the protection of family and friends, a sense of bewilderment, embarrassment or outrage, or a reasoned decision to wait until the allegation against them has been set out in detail and they have had the benefit of considered legal advice.' And they went on to say that 'members of ethnic or other minority groups may have particular reasons of their own for feeling that any answers they give may be unfairly used against them.'

The commission also found no conclusive evidence that silence was used disproportionately by professional criminals. It is used anyway in a small proportion of cases (5 per cent in the provinces, 9 per cent in London), and a large number of those who remain silent under police questioning go on to plead guilty.

Even if the police were correct in arguing that silence was being used as a shield in that small proportion of cases, this does not justify the undermining of a right. The commission was concerned to protect the innocent. Its members thought that less experienced and vulnerable suspects would be more intimidated by the threat of adverse comment, while hardened criminals would still think it worthwhile to stay silent until they saw the full case against them, rather than mount an early false defence which the police would have time to investigate.

The experienced criminal will now say in his defence: 'I was advised by my solicitors to say nothing until the allegations against me were fully disclosed.' But this is the same advice as the straight solicitor might give to the innocent, particularly if the suspect were confused, inarticulate, easily bullied or manipulated. And so, once again, the innocent will resemble the guilty.

'The innocent have nothing to fear,' says the Home Secretary. He is wrong. He has just given them something to fear. They still have a right of silence, but he has besmirched that right.