The ‘right to silence’ and freedom of speech

September 15th, 2011

I hear that some in ACT who defend the ‘right to silence’ justify their position with a cute rhetorical antithesis – “ACT supports both freedom of speech and the right to silence”.

They’ve let their rhetoric mislead them – not a rare event for politicians generally, but in my experience rare for ACT.

It is a false connection because ending the so-called right to silence is not about ending choice or a freedom. The choice remains. It is instead about restoring something ACT is usually alert to – responsibility for the consequences of your exercise of choice. Ending the ‘right to silence’ means restoring the lawfulness of the consequence that people may change their opinion of your veracity or your other claims if you decline to put yourself under the same scrutiny as other witnesses who will be questioned about them.

Like slogans, rhetorical devices can mislead if they are a substitute for analysis. In this case there is no logical connection between the two phrases in the rhetoric, because ‘the right to silence’ is not about freedom to speak or not to speak. Instead it is legal jargon, shorthand for a rule that a court must ignore what would otherwise be plain evidence before it.

That kind of evidence is sought and relied on constantly in everyday life – people are eager to correct mistaken views about them and their conduct. Innocent people wrongly suspected demand the natural justice of being allowed to explain, they are anxious to set the record straight. They speak with the authority of personal direct knowledge, qualified only by their obvious self interest.

So people who refuse to respond to accusations are regarded with justified suspicion, especially where they will have ample time and invitation to set out all the detail.

Filed under Criminal Justice, Free Speech, Politics

Comments

"..It is instead about restoring something ACT is usually alert to – responsibility for the consequences of your exercise of choice."
Weasel words–you advocate <i>creating</i> consequences and then claim people should be responsible for them!
Orwell would have loved it.

KG do you have something more to add to the discussion than simple ad hominem insults? It is whatever offence that has occurred which has created the consequences which includes harm to society and suspicion falling on the accused. There is an immediate economic and psychological harm which is caused to all society and particularly to the victims.

Arrest causes inconvenience to the innocent person arrested but it also causes cost to society, not least to the victim now that police attention is focused on the wrong person. Your enthusiasm to defend the accused rights ignores an obligation on their part to reduce the harm to the taxpayer and their fellow citizens by clearing up this confusion promptly.

Finally, if I understand the debate correctly, under the (now lost) proposal the accused persons right to silence is always preserved but it would have been possible to point out in court to those like myself, less sophisticated in matters of the law that they have chosen not to offer the apparently simple explanation for suspicion which has now become impossible for the police to easily disprove. The law imposes a sort of childish game of "ha ha, my clever lawyer has dreamed up something which no one thought of at the time (when it could have easily been disproved) so now I am off the hook!"

To me, it is simply outrageous that this sophisticated and expensive game is forced upon the legal system by pedants. If I may demonstrate my own humanity by indulging in a little "ad hominem" myself, I accuse you of "faut de grandeur" in ignoring as of no consequence the harm to society and to victims of allowing both the guilty and even those innocents with a stroppy desire to play games with the police to continue to force them not to allow the silence of the accused to be bought to the attention of the jury.