Readers' Views: The right to silence

Queen's Counsel Kevin Ryan shocked lawyers on the day of his retirement by saying he thinks the right to silence is outdated and should be abolished.

Referring specifically to the killing of the Kahui twins, the 75-year-old courtroom veteran said: "In my view, we are assisting evil by just sitting there and not answering questions."

And he said juries should be allowed to know a defendant's criminal history.

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The right to silence is important in that the burden of proof rests with the prosecution. In other words, a defendant is not required to prove they are innocent, the prosecution must prove they are guilty. If they have a decent case then they should be able to do this without any statement from the defendant whatsoever. If they cannot then there is reasonable doubt and so an acquittal is the only possible verdict. It might be an old rule but it is an essential part of our justice system and we must not allow any moves by groups with a lynch-mob 'shoot first, ask questions later' mentality to compromise it.

- - - posted 1.21pm by Scott McDowall

Critics of the right to silence fail to consider the unintended consequences of abolishing it. What sanctions can be imposed on those who speak unwillingly? They may not remember, they may not even know what is demanded of them. How can anyone judge whether they are telling the truth about that? The situations where this has become an issue are those in which inevitably the evidence will reduce to one person's word against another with no independent verification possible. It is not hard to see that two people in that position may well feel that to speak is likely to put both in the dock and highly likely to cause a negative consequence for both. It would surely be more productive in these and very many cases to spend much more effort to stop the tragedy happening in the first place than trying to find someone to lock up afterwards. As in many other situations, playing the blame and punish legal strategy puts a massive roadblock in the way of actually identifying and fixing the problem.

- - - posted 12.43 pm by Alan Wilkinson

What a shame Mr. Ryan didn't exercise this right.

- - - posted 12.33pm by Murray Olsen, Australia

Society also has rights, and obligations towards these murdered children. How is it ethical to deprive these children of their right to unhindered justice by allowing their murderers to hide behind a wall of silence? Who needs greater protection, and is least able to defend themselves - adults or babies? Surely we should either look at abolishing the right to silence in such cases or, as an alternative, making it possible to charge all those involved should they choose to stonewall the Police.

- - - posted 11.51am by Andy Beck

I don't believe that an individual should effectively have the right to avoid prosecution, or allow others to avoid prosecution, through abusing the right to silence. I have no doubt at all that to stay silent, when to speak out would be to provide needed evidence, is abuse. Our present system allows this to occur without penalty. I believe therefore that this type of abuse must occur often. But, as others have already written, the power of the state must be countered.

Thus I have a compromise. I offer the following in the spirit of constructive criticism:

I believe that the individual should have the right to silence, just as they do now, until they are in court. In court, (hopefully) they would be effectively represented and supported by a lawyer. This would mean that a case would have to be developed just as it is now. The developed case material would clearly identify the information required, and who, specifically, would be in a position to provide it. Once the identified individual has provided their answers in court, the previously developed case material would form the basis of comparison necessary for a judge or jury to decide on the truthfulness of the individual's testimony. This I think, would answer any concerns I would have if I were faced with the situation of having to provide crucial evidence.

As a separate issue- I believe that a Judge or Jury should be provided with as much information as possible regarding a particular individual, if that individual and their testimony is crucial to a case. How else can they make a fully informed judgement? As soon as information is actively concealed by the choice of the state it inevitably involves a form of bias - the danger of which lies primarily in the fact that this cannot be apparent to those immediately concerned. The argument that people are innocent until proven guilty, especially as regards those with a criminal history, doesn't count in my opinion - they have already been proven guilty, of the willingness to violate the law of the country. Protecting the rights of the innocent should not provide the means by which the guilty can escape justice. I believe a better balance must be struck.

- - - 11.40am posted by Stuart Birnie

In 2006, a right of silence that is supposed to protect individuals from the power of the state is used cynically by groups who wish to evade accountiblity. Example: the "tight 12" family members who banded together to withhold information after two baby twins were beaten to death. How does it assist "justice" when a right to silence is turned into a right to kill defenceless babies and get away with it. We can all wax lyrical about the need for protection from the state, but what about "protection of the defenceless". For those who insist the right to silence is paramount: tell me how you will ensure that justice prevails for children whose parents have latched on to the idea that they need not fear repercussions if the children are found violently dead but nobody will talk.

- - - posted 10.24am by Jack Rowlings

The right to silence is a fundamental right that has existed for hundreds of years, like Habeas Corpus. Although there is a feeling that the criminal justice system favours the offender, the right to silence is not a product of that criminal justice system; rather, it is an ancient right that protects all of us from authoritarian government and police (e.g. forced confessions). Recently, the Bush administration has removed the right of "illegal combatants" to challenge their own detention and to hear the charges against them (Habeas Corpus), which gives that government authority that not even Henry VIII had. What other ancient rights of Western civilisation will we abolish? The criminal justice system in NZ is weak in that it treats crimes as if they were against the state rather than against the community, and so is very offender-oriented, but that cannot be fixed by abrogating ancient rights. Most important is that the criminal justice system puts the victim and the community at its centre.

- - - posted 10.04am by Paul McMahon

I believe the right to silence is indispensible. An individual brought in for questioning by police is alone and, if uneducated an inexperienced in such things, would leave themselves open to any kind of attack on anything they say. They may answer questions honestly and openly, hoping to provide assistance. But the police, who have interviewing procedures down to a fine art, have an overwhelming advantage over such individuals. It is these individuals that this right is supposed to protect. How can the good Mr Ryan suggest that this right is no longer relevant in this day and age? It would seem that with such high profile cases with widespread (and too often one-sided) media coverage, the right to silence is needed more now than ever.

- - - posted 9.58am by John Murphy

The right to remain silent in NZ needs to be maintained to protect people from themselves. A change in law regarding a length of time a person is allowed to remain silent is required. I suggest a suitable period of 48hrs would be appropriate to allow the person in question to obtain professional advice and legal representation as necessary. This period of maximum 48hours would allow the investigations to proceed in what the majority of people living in NZ would call a timely manner.

- - - posted 9.50am by Mark Bayfield