Kerre Woodham: Real power and the right to silence

Finally, a lawyer, and a prominent one at that, has said what a lot of New Zealanders feel about the legal process.

On the eve of his retirement, Kevin Ryan QC, has called for the right to silence to be abolished and astonished his peers by claiming that lawyers were assisting evil by sitting next to their clients and not answering questions. He was referring specifically to the Kahui case but there are other families out there, staying schtum on the advice of their lawyers and making it difficult, if not impossible, for the police to lay charges.

The vast majority of New Zealanders would support Ryan. They find it incomprehensible that the parents of a murdered child would not want to find out who killed their baby and they find it inconceivable that a charge cannot be laid against those individuals who are hindering police investigations. Surely, in six years of study for a law degree and given the level of finessing that goes on with existing legislation, there must be something in the law books that you could throw against one of the Kahuis. And if there isn't, why doesn't the government pass a motion of urgency and get legislation passed to provide justice for the dead children with the speed they showed last week when it came to protecting their own backs.

I know civil libertarians claim the right to remain silent is sacrosanct. The president of the law society, Gary Gotlieb, says it's imperative that safeguards, like that of silence, remain given the comparative power of the state over the individual. Gotlieb was in the news recently along with his clients, three young women who'd been wrongly imprisoned, so I guess he's feeling particularly prickly about the abuse of human rights.

Ryan claimed the right to remain silent was enshrined in law when the public were uneducated and most people were illiterate, and that times have changed and the law should change with it. Gotlieb disagrees, and says there are still many uneducated and disempowered people who need all the safeguards they can get to protect them from the might of the state.

From what I can see - and to be fair, I only see the court cases that garner publicity - there's an underbelly of New Zealand society that may be uneducated in the traditional sense, but they're sure as hell not lacking power. They know exactly what benefits they're entitled to and how to go about getting them. They know tenancy laws inside and out, and can make your average landlord, Housing New Zealand included, jump through hoops. They know more about criminal law than any kiddie cop fresh out of police college, and many of them have the power to intimidate and terrorise their neighbourhoods and communities.

Uneducated illiterate oiks, sure. But powerless? Not in any real sense of the word. The deputy president of the Law Commission has suggested a compromise, as is employed in Britain. There, people have the right to remain silent, but if they exercise that right, that can be brought up in court - the implication being that the elective mute has something to hide.

In New Zealand, prosecution lawyers can't make that implication. And perhaps that is a good legal compromise. But laws are meant to reflect what society will and will not stand. And I'm not sure how much longer the public is willing to allow families to hide behind archaic legislation.

That may be their legal right but as Kevin Ryan points out, it's not morally right.