Friday, October 20, 2006



The right to silence

Retiring Auckland QC Kevin Ryan has proposed ending both the right to silence and the ban on introducing previous convictions as "evidence" at trial. Like DPF, I'm stunned. Both are cornerstones of our justice system, and vital protections against miscarriages of justice. The right to silence ensures that any confession is voluntary (rather than extracted under duress by police eager to boost their closure rate), and protects that other cornerstone of our justice system: that it is the crown, not the defendant, which must prove their case. The bar on introducing previous convictions ensures that cases are judged on their merits and the evidence before them - not on what else the defendant is accused of or has done in the past. While both clearly lead to frustration at people "getting away with it" (as for example in the case of the Kahui twins, or the police rape case), this is the cost of justice. Eroding them would undermine another of our core principles: that it is far better for the guilty to go free than see the innocent wrongly jailed. And that is a principle I'd think that Kevin Ryan of all people would understand.

4 comments:

I agree that this is an appalling idea, however, the right to silence does not ensure that any confession is voluntary.

You had a right to silence, but under duress gave up that right.

Posted by Graeme Edgeler : 10/20/2006 02:04:00 PM

Graeme: it does however help, and ensuring that everyone (and their interrogators) knows that there is an absolute right to silence helps keep everything above board.

Posted by Idiot/Savant : 10/20/2006 02:45:00 PM

While the defendants enjoy the right not to have past convictions presented in court, the accusers do not. Is that fair?

Example the policemen rape trial where the previous convictions of the policemen were not allowed to be raised yet the accusers past was dragged through the mud.

In a just system neither the accusers nor the defendents pasts should have a bearing on the case before the bench, just those facts pertaining to that case only.

Posted by Gerrit : 10/21/2006 06:59:00 AM

Defending things because they are "cornerstones of our justice system" rings of mindless conservatism.

With appropriate protections it would not undermine the problem of "that it is far better for the guilty to go free than see the innocent wrongly jailed. "

In fact, potentially, less innocent people would go to jail.

of course we may not trust our legal system to operate in a suitable way - but if we deny even our capability of managing somthign like that out of hand then we have made a very damning comment about ourselves.

GeniusNZ

Posted by Anonymous : 10/21/2006 06:24:00 PM