Effects of abrogation
01 January 1994
What is clear from a recitation of the decided northern Irish cases is that abrogation there has significantly reduced the burden on the prosecution to get a conviction - or, to put it another way, has significantly increased the dangers of wrongful convictions. In early cases decided under the Northern Ireland Order, such as R v Smith, the courts were at pains to emphasise that if other evidence against the accused was not up to scratch, the Order would not be used to draw adverse inferences from silence. In later cases, such as that of Sean Kelly, one of the Casement Park accused, drawing of adverse inferences from the failure to explain presence at the scene was used to bolster very weak evidence to convict in a high-profile political trial where the dangers of a miscarriage of justice are at their highest.
Quite apart from this erosion in the burden of proof on the prosecution, abrogation of the right to silence has profound effects on the role of a suspect's legal adviser at the police station, from guardian of rights to something far more complex, straddling defence and prosecution. It also results in additional and sometimes intolerable pressure on a suspect, not just at the police station but all the way through the criminal process up to the end of the trial.
The Lord Chief Justice has come out against the trial judge formally calling on the accused to give evidence, but has not condemned the other elements of the abrogation package which call on a suspect to comment on presence in an area or forensic evidence linking him or her to a crime. He seeks to evade the central issue of the presumption of innocence and the burden of proof by saying that the issue is not the right to silence but the judge's right to comment. That this is a spurious distinction can be seen by the elementary fact that once adverse comment is made on the exercise of a right, then it ceases to be a right in any meaningful sense. To have a Lord Chief Justice who refuses to see this is rather alarming
In the interests of justice? Pamphlet on the Criminal Justice and Public Order Bill by the Haldane Society of Socialist Lawyers, 20/21 Tooks Court, off Cursitor Street, London WC2.