David Stevenson: Right to silence at trial outdated

Greg King, the lawyer for Ewen Macdonald in the Scott Guy murder trial, chose not to call his client to the witness stand. Photo / Mark Mitchell

Opinion

The Scott Guy case has again demonstrated the inadequacies of our criminal trial procedure. A trial is held not to establish the truth but only to determine whether the prosecution can prove beyond reasonable doubt its case against the accused.

The case highlighted how an accused person is able to immunise himself against the dangers of cross-examination by exercising his right to silence.

In this case, thanks to the rules relating to the right to silence, the judge was not allowed to redress the patently unbalanced and unreal nature of this process by pointing out to the jurors that they could draw their own inferences from the fact that the accused chose to shield himself from cross-examination by staying silent.

These unbalanced and potentially unjust situations arise because the law grants to a suspected or accused person a privilege denied to all other citizens, namely the right to silence.

This right was created in England not by eminent Law Lords applying some seminal, eternally incontestable legal principle. Rather (according to Halsbury's Laws of England) it evolved more than 200 years ago because the legal establishment felt that the uneducated criminal classes should be protected, as a matter of fairness, from incriminating themselves.

Can a law designed to protect uneducated ancient Britons from themselves have any place in today's educated society where personal accountability is required in all other aspects of life?

As a consequence of the right to silence rule, police are hampered in their inquiries, juries reach verdicts on the basis of incomplete evidence, victims and their families feel betrayed by a system that allows an accused person to stay silent while his lawyer may accuse or malign others, and young offenders are sent a message that responsibility for criminal acts can be avoided by simply keeping their mouths shut.

The dysfunctional role that legal aid can now play in criminal trials also deserves scrutiny. Legal aid was introduced to ensure that those facing criminal charges had access to legal advice and representation.

Again, because a criminal trial is not held to establish the truth but sets out to establish whether the prosecution can prove its case beyond reasonable doubt, legal aid often gets used (perfectly legally and properly under the present defective system) to fund evidence to cast doubt on the prosecution case.

That is a very different thing from having a defence to that case and not at all what Parliament intended when it provided this money from the taxpayer.

Add to this the fact that expert evidence that can be used to cast doubt on the Crown case is now an easily purchasable commodity with its credibility enhanced in direct proportion to the distance it travels to get here and you have the perfect recipe for a legal aid system that is out of control in terms of cost and incurably dysfunctional in its impact under the present criminal trial process.

To achieve fairness to both the accused and victims and their families the following reforms are required:

* Abolish the right to silence. Require that a suspect must have the opportunity of seeing his lawyer or a publicly funded lawyer before being obliged to answer questions put by the police.

* In a trial the accused should be subject to the same obligation as other citizens to truthfully answer questions.

The jury should be free to draw whatever inference it chooses if the accused, having been called to the witness box, refuses to answer.

In a trial, after the evidence has been heard but before summing-up by counsel and the judge, there should be a process to establish the truth of what happened by having the judge set a series of questions which the jury answer to the best of their ability.

The judge must advise the jury that their findings at this stage do not bind them when it comes to the issue of whether the prosecution has proved its case against the accused beyond reasonable doubt.

* Have counsel sum up with freedom to comment on, criticise and disagree with the evidence and the findings as to the truth of what happened.

* The judge then sums up and must direct the jury that the process of endeavouring to establish the truth does not bind them in any way and that it is for them alone to decide whether the prosecution has proved its case against the accused beyond reasonable doubt.

These changes would have most impact at a first offence because instead of lawyers being ethically obliged to say, "Keep your trap shut and let's see what the police can actually prove", they will be saying, "You are legally obliged to answer police questions truthfully so my job is to ensure that you do not incriminate yourself for things you did not do".

The effect of these changes would be that establishing the truth will be put at the heart of the criminal justice system both at the investigative stage and during court proceedings.

The community, especially young people, would not be sent the perverse message that responsibility for criminal acts can be avoided by the street-smart act of keeping one's mouth shut.

In addition there would be a lot fewer criminal trials (and thus dramatically reduced legal aid costs) because many offenders will not be able to maintain the pretence of innocence once they no longer have the shield of silence.

David Stevenson is a Wellington writer.