1988 New law could erode right to silence

The British Government has announced plans to change the law regarding a suspect’s right to remain silent so that remaining silent could incriminate rather than protect a suspect.

The change would be introduced first in Northern Ireland from November. Similar restrictions are expected to be made in England and Wales at a later date.

The news comes after increased pressure from senior politicians, security forces and judges over the failure to convict suspects, even with incriminating evidence, because they have chosen to remain silent.

In the proposed change to the law judges will be able to interpret the meaning of a suspect’s silence and draw “an adverse inference” from it. However, a conviction will not be possible based on the silence alone.

Suspects will not be forced to speak, either in court or when being questioned at a police station, but the prosecution will be able to draw attention to the silence and invite the jury to consider the possible reasons behind it.

The problem has been highlighted in recent trials of IRA Provisionals. A man was recently acquitted despite the fact his fingerprints were found on a bag of firearms that were central to the case.

He failed to answer any questions or make a statement to confirm any details.

Northern Ireland Secretary Tom King said the law needed to be changed to prevent the deliberate abuse that currently occurs. He said that the problem had “started with terrorists and has now pervaded through racketeering into the whole system of criminal law”.

“The gross, determined and persistent abuse of that right to silence, and the training in procedures to avoid it, does pose a challenge to the whole system of justice” he added.

In a recent issue of the Provisional IRA’s newspaper, Republican News, advice was given on how to deal with interrogation. It ran below the headline ‘Whatever you say, say nothing’.

Courtesy BBC News

In context

The ability for a judge to consider the meaning of a suspect’s silence became law the following November as part of the Criminal Evidence (NI) Order 1988.

In 1994 the Criminal Justice and Public Order Act came into force and included a section outlining the fact that a person’s reason for remaining silent could be interpreted by a judge and jury.

The act caused a great deal of controversy and was seen by human rights activists as an erosion of a fundamental principle of English law that a person is innocent until proven guilty.

In response to widespread criticism of section 34 of the act relating to police questioning, the Youth Justice and Criminal Evidence Act (1999) was introduced to ensure no adverse inferences were drawn from a silent suspect until he or she had received legal advice.

In a study published by the Northern Ireland Office in 2000 it was revealed the number of people refusing to testify had gone from 64% in 1987 to 25% in 1995.