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End the right to silence

  • September 14th, 2011

I'm sorry that some in ACT have reneged on the policy I worked for in Parliament, according to Stuff.

 That policy to end the "so-called right to silence" (Ted Thomas J's description of it) took into account the UK experience after ending it more than a decade earlier. It considered the academic writing on both sides (retired NZ judges from both sides of the  left/right spectrum considered it to be a poseur right). But mostly it flowed from my determination to focus our policy back on to increasing the availability to courts of the truth, the whole truth and nothing but the truth.

Most of the lay opposition to its abolition is out of a misconception that a right to silence would be replaced by a rule forcing people to give evidence. It would not. An accused could remain silent still. The only change could be that the court is permitted to recognise and draw inferences from a failure to expose yourself to cross-examination.

 Such a reform would simply recognise a common sense reasoning that probably finds its way into many (but unfortunately not all) jury findings despite vain judicial instructions not to take it into account. That reasoning is that the person in the court in the best position to know what really happened involving him is the defendant. If he has counsel hounding other witnesses with potentially spurious theories about what happened but declines to offer his own evidence, or to expose himself to questioning, then the court is deprived of the most direct account of the truth.

I’ve discussed the issues with a number in the criminal bar who oppose the change. None of them were persuasive on ways it will increase the risk of false conviction. I sum up their opposition as being based on the fervent belief that they are engaged in a noble game and that it is unfair to change its rules to disadvantage the accused, irrespective of whether the accused is actually guilty or innocent.

Claiming that a procedure is fundamental is the standard reaction of lawyers to change, with no connection to the primary concern of a sound criminal law – that is reducing to a minimum the wrongful conviction of the innocent while meeting the reasonable expectations of victims and the rest of us – that the guilty will usually be found out.

Remember – the law has to be pragmatic. There are many rules that work on probabilities, balancing costs against each other. It may be better that 9 guilty go free than one innocent be convicted. But it is not better that 100 guilty go free than one innocent be convicted. We know that justice miscarries. That does not mean we can abandon consideration of the effects on confidence in it, and its cost, if there are offensive displays in court facilitated by the immunity of an accused from being asked about his own conduct, while he can challenge all others’ accounts.

The right to demand that judges and juries ignore your failure to answer obvious questions is not a foundation element of the presumption of innocence. 

Previous posts on this topic are here and here


  • KG
  • September 14th, 2011
  • 2:00 pm

"An accused could remain silent still. The only change could be that the court is permitted to recognise and draw inferences from a failure to expose yourself to cross-examination"
After seeing the way words can be twisted by smart-arse lawyers, how they hector and browbeat and confuse unsophisticated people, it may well be that remaining silent may be in a defendant's best interests.
Inevitably, under this law change that silence is going to be interpreted as evidence of guilt.


You do not know what kind of agenda might be driving government prosecutors, who could quite easily be as corrupt as all hell, judge included.
Don't tell me it doesn't happen. Look at farce that's occurring in Aus at the moment with a virulent anti Murdoch journalist chairing an inquiry into the media.

Secondly, the removal of this protection at the this level means the same removal filters its way down through all of the petty bureaucracies that administer local regulations in NZ, and those bureaucracies are frequently staffed by the most horrible people.
To hell with you Mr Franks and your buddy Power. Take your meddling and shove it. We need politicians like you and Figjam removing our rights and giving more power to government like we need holes in our heads.

  • KG
  • September 14th, 2011
  • 10:58 pm

Too right!

  • KG
  • September 14th, 2011
  • 11:00 pm

The law belongs to the people, not a bunch of lawyers and politicians. Leave it alone and clean up your own houses first.

  • The Gantt Guy
  • September 15th, 2011
  • 12:12 am

Mr Franks, while you say the law has to be pragmatic I would argue the examples of cases being decided in the exact opposite are too many to number.
In advocating in favour of this law change you appear to forget the one simple truth that the Defendant has no obligation to assist the Prosecution.  As the law currently stands a Defendant may remain silent (without any inference being drawn) and force the prosecution to prove their case. If the Prosecution fails it is the fault of the Prosecution, not the Defendant.  Another persepective is this: if a Prosecution relies on the evidence of a Defendant for its success, should the case even be brought in the first instance?  If this law change is approved, many Defendants will ultimately be assisting the Prosecution no matter which way they go.
Take our unsophisticated Defendant in KG's example above.  Let's assume he didn't do that of which he's been accused (and let's also assume the National Party hasn't – yet – removed the presumption of innocence). If he gives evidence, it wouldn't take much of a lawyer to tangle him up in knots, contradict himself and leave the jury (assuming Defendants are still allowed jury trials) to see he's clearly untrustworthy. Thus, he aids the Prosecution by giving evidence.  If he chooses to not give evidence, the jury may infer from that that he has something to hide and thus must be guilty as charged. Thereby aiding the Prosecution's case.
You said in your post you advocate this law change "to focus our policy back on to increasing the availability to courts of the truth, the whole truth and nothing but the truth". I don't know you Mr Franks, but I struggle to believe for a second that you believe that any court process, much less the criminal procedure, has anything to do with the truth. It is about the administration of the law. If the two (the truth and the administration of the law) it is nothing more or less than a happy coincidence.
The scales are already weighted heavily in favour of the Prosecution (mostly, I'll agree, because the majority of people charged with a crime have committed that crime). It would be a mistake to tip the scales even further.

  • Jim Maclean
  • September 16th, 2011
  • 12:46 pm

Unlike the Gantt guy, I believe that the vast majority of lawyers and the judiciary do believe that court processes consider truth to be a vital component. The on-going debate remains how best to achieve that with fairness to all involved. In the UK for the last ten years they have apparently made the change that we resile from. It could be argued that countries which have an inquisitorial justice system like France and Spain also believe that where an accused has ample opportunity to set the record straight, but chooses not to, can have reasonable conclusions drawn from their silence.
The Gantt Guy's comment implies derision at the place of truth in the Judicial process, which leaves me confused. These changes are designed to elicit the truth and those opposed to it seem to be saying that although that is accepted, it is an unfair or coercive way to achieve it. If that is the case then I invite Gantt Guy to decide whether he feels that the present legal systems lack of concern for truth over process is a good thing or not?


[…] Stephen Franks makes the case for adopting the UK law: […]


What do juries infer? That the accused has something to hide or that he is not very bright, not very likable and fumbles under pressure?

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