Wednesday, July 02, 2014

Time to defend the right to silence

Another day, another attack by the government on the rights of the accused. This time, its the right to silence: as part of a new package aimed at reducing family violence, the government will

explore whether prosecutors should be able to invite the judge or jury to draw an adverse inference when a defendant refuses to give evidence in sexual violence cases. Current law only allows the defendant, the defendant’s lawyer or the Judge to comment on a defendant’s failure to give evidence.

Apparently England and Wales have such a system, but unlike Judith Collins I'd hardly consider Britain, with its creeping totalitarianism and corrupt police force, to be a model for our justice sector.

As for why we should resist this, its simple: because it undermines the right not to be compelled to give evidence against yourself. To point out the obvious, if an adverse inference can be drawn from your refusal to speak, then that is no longer a right. It is also a direct attack on the presumption of innocence, in that rather than proving their case, police will be able to use a defendants refusal to admit guilt to imply it. Which probably sounds great to regressives like Collins who want to drag us back to the era of guilt of accusation, but the result will be injustice and the persecution of the innocent.

There are sound reasons why no-one should ever talk to the police under any circumstances (American context, but the same principles apply here). The response to people taking their right to silence seriously is not to strip it from them, but for the police to do their fucking job and find another way to build a case. And if they can't, it is better to see the guilty go free than an innocent punished.