User namePassword 

 Print this Issue Home  •  Archive  •  About Us  •  Contact  •  Advertise  •  Merchandise Subscribe  •  Free Trial
1 September, 2009  
Right to silence

The right to silence in criminal cases is a huge money spinner for defence lawyers … Tulkinghorn gets to grips with the ethical issues … Apart from the accused there are other “stakeholders” in a fair trial

imageThe right to silence is a spectacularly successful make business creation of the criminal defence lawyer fraternity.

Professor John Langbein has written in The Historical Origins of the Privilege against Self Incrimination at Common Law (1994 Michigan Law Review) that:

“The privilege against self incrimination is the creature of defense counsel.”

The objective was to make business for criminal defence lawyers.

They needed something to sell and the “privilege against self incrimination” is one of their most popular wares.

It caters to the “guilty” client market segment.

The lawyers developed this product (as it would be called today) between 1770 and 1800 and the “make business” results were spectacular.

The number of defence lawyers appearing in Old Bailey criminal cases rocketed from around two percent in 1770 to about 30 percent by 1800, as reported by Professor J.M. Beattie (see here for first page of his article).

imageLangbein (pic) says:

“In order for a privilege against self incrimination to function, the criminal defendant must be in a position to defend by proxy.”

In practice an unrepresented defendant is not going to get far by saying to a jury:

“I might have done it but they haven’t proved it and I don’t want to talk about it.”

A defendant needs to hire a lawyer to say it.

The right to silence is, in essence, a right to refuse to co-operate in a search for truth.

However, abolition of the right to silence is not about forcing people to speak. All it entails is giving courts the authority to infer what they like from a defendants’ silence.

No one is going to be allowed to torture anyone. Proposals to abolish aspects of the right to silence are portrayed by lawyers as attempts to bring back the Star Chamber, with attendant notions of torture and inquisition.

Scarcely a month goes by without some optimistic soul calling for reform of the right to silence.

On August 20 The Herald Sun reported:

“John Dee, QC … calls for an end to suspects being able to hide behind their right not to answer police questions.”

On August 28 The Sydney Morning Herald reported on the proposition that defence lawyers should have to say in advance of trial what the defence will actually be, instead of being allowed to invent defences as the trial proceeds.

“The Herald understands some in the working group wanted the the full defence case to be presented in advance, but were opposed by others who feared it would erode the principle of an accused’s right to silence.”

In Azzopardi v R Justice McHugh said:

“Until recently, most common lawyers believed that … the privilege against self-incrimination had been developed by common lawyers in the first half of the 17th century as a result of the reaction to the procedures in the Star Chamber and the ecclesiastical courts… These beliefs were chiefly based on the writings of ProfessorJ.H.Wigmore … and … ProfessorLeonard Levy… It now turns out that the views of Wigmore and Levy concerning the origin and development of the self-incrimination privilege were dead wrong.”

imageOn his retirement in 2005 from the Queensland Court of Appeal Justice Geoff Davies (pic) said:

“No rule has been the subject of as much confused thinking as the right to silence… So many people, including criminal lawyers, seem to think it’s been part of something that’s part of the legal system since the days of the Star Chamber… In the end you have to persuade the politicians and the politicians have to overcome the very strong opposition of the practising lawyers.”

That opposition is driven by the consideration that the right to silence is a great money spinner for lawyers.

In response to Davies the Queensland Attorney General Rod Welford said that he wasn’t going to try to take the right-to-silence-bone off the legal profession Rottweiler.

He suggested that reform efforts focus on a less juicy bone. He said that Justice Davies …

“presents a powerful argument for some in-roads into the right to silence issue.”

Nonetheless, the AG thought it was a difficult issue, adding that “there is sounder reasoning” in support of reforming laws relating to illegally obtained evidence.

imageThe right to silence is essentially immoral, in that a guilty person really has no ethical “right” to put an innocent person (the victim) to proof.

In 2002 Queensland legal luminaries Deborah Kellie (seen here) and Helen O’Sullivan posed this question:

“Is an unqualified right to silence at trial defensible from an ethical perspective?”

Admittedly, the word “unqualified” creates a lot of wiggle room, but their general message was clear. They said:

“An ethical perspective dictates that it is time to reconsider the right to silence at trial. Ethically, a ‘fair trial’ should not just privilege the accused. It must recognise the rights of all stakeholders: amongst which we include the victim, the victim’s support network, and the community.”

One can identify at least six other possible reasons for the surge in defence counsel (i.e. other than lawyers making business for themselves) and these are explored in an article The Mystery Of Old Bailey Counsel (Cambridge Law Journal, 65(1), March 2006) by Professor T.P. Gallinis.

He said that the article …

“proffers a hypothesis about a persistent historical mystery: Why did the use of defence lawyers in felony trials at the Old Bailey increase so noticeably in the last quarter of the eighteenth century?”

imageThe conclusion to this article makes an interesting reference to, “William Garrow (pic) – called to the Bar in 1783 – helping to increase business by showing the benefits of using counsel”.

Theoretically, the right to silence benefits only guilty people.

As Jeremy Bentham said in his Treatise on Evidence (1825):

“Innocence claims the right of speaking, as guilt invokes the privilege of silence.”

Can defence counsel legitimately say, “I know you are innocent but you are going to be convicted and if you give evidence that will make things worse for you”?

In Monty Python’s Life of Brian, set in biblical times, someone who has been sentenced to death by stoning tries to explain his way out of it.

The presiding “judge” tells him: “You’re only making it worse for yourself”, to which he replies: “Making it worse? How could it be worse?”

What about the convicted client who says. “I was innocent, but my lawyer advised me to remain silent”?

The NSW Court of Criminal Appeal had to wrestle with that sort of situation on August 19

The defence had run something like, “He didn’t do it, but if he did, it was self defence”.

The CCA referred to, “the self-convicting quality of the present appellant’s story” and said:

“It would seem that his chances of acquittal would have become even more remote had he given evidence.”

All of which suggests remarkable judicial tolerance for guilty people wasting the courts’ time trying to get off.

But only for as long as, I suspect, that they are making profitable business for lawyers.


Reader Comments

Posted by: Anonymous
Date: September 2, 2009, 8:29 pm

If an accused person gives a version which does not amount to a confession (and can't be construed as a false denial) it is inadmissible. It is said to be "self serving" so what advantage is there for an accused to give a version?