Anything You Don’t Say May Be Used Against You

The first sentence of the press release announcing the New South Wales Government’s changes to the right to silence read: “The scales of justice will be tilted towards common sense.”

Yes, “common sense”.

We should be terrified when professional politicians start talking about common sense. Rights are always undermined by euphemism.

The O’Farrell Government’s right to silence changes passed the NSW Parliament last Thursday. From now on, NSW Police will qualify their standard police caution “you are not obliged to say or do anything unless you wish to do so” with this sentence: “But it may harm your defence if you do not mention when questioned something you later rely on in court.”

In other words, you’re welcome to stay silent, but you might regret it.

Juries will be allowed to “draw an unfavourable inference” from the fact that somebody decided to remain silent before a case got to court.

Courts have identified two parts of the right to silence. The first is your right to say nothing when being questioned by the police. The NSW reforms do not directly remove the right in this first sense.

The second part is the right not to have that silence used against you at trial. And it is this right that has been comprehensively trounced by the changes.

What good is a right if you are told you could well be punished for using it? The second part of the right to silence gives substance to the first part. It is disingenuous to suggest otherwise.

Most serious analyses of the right to silence are done by legal academics. Understandably, they focus on how judges and courts understand the right. So we get a lot of discussion about famous cases and High Court appeals and jury instructions.

But much of this misses the point. The Government has been transparent about what it believes the purpose of its reforms are – not to alter the way courts think about the right to silence, but how accused people think about it.

A police interrogation is presumably an uncomfortable occasion, whether you are guilty or innocent. When the facts of a case are unclear, the accusation is unclear, the accused may be confused, intimidated, and off-balance, the new standard police caution becomes little more than bullying. How are they supposed to know what they will later rely on in court? How specific will they have to be?

What was originally an unambiguous protection for people accused of a crime – if you are unsure of yourself or out of your depth, stay silent until you can fully consider your legal position – is now vague and imprecise and threatening. The fact that a lawyer must be present is no comfort.

This piece in the Conversation on Friday makes it clear how devilishly complex removing the right to silence can be. The NSW changes are based on a similar reform in the United Kingdom back in 1994. The new doctrine has become a “notorious minefield”, yet has had no effect on conviction rates.

The right to silence is one of the more unloved rights. It is being slowly written out of the legal canon.

The police don’t like it. One paper published in 2000 in the Australian Federal Police magazine argues that the development of the right to silence was simply “an over-reaction to tyranny”. That tyranny was the early modern English star chamber, which used torture to coerce suspects to talk.

But then again, there’s probably loads of evidentiary rules and accountability requirements that some police think get in the way of speedy convictions. That a legal protection is often used is no reason to get rid of it.

And politicians don’t like it. Obviously, elected officials adore a good law and order crackdown. The upside gains are huge. Nobody likes crime. The downside risks are tiny. Civil libertarianism doesn’t swing elections. Even federal politicians are desperate to get in on the action. Julia Gillard told Western Sydney she wants to fight gangs. Tony Abbott wants to roll out CCTV surveillance.

The push against the right to silence isn’t limited to criminal procedure. There were no less than eight pieces of legislation passed in the Commonwealth Parliament last year that limited this crucial right. (I wrote about one of those – an anti-illegal immigrant bill – on the Drum in September.)

Earlier this month, the NSW Attorney-General Greg Smith said that the changes would make trials “more efficient”.

What a horrible thought. The entire English criminal system is designed to make it hard to convict someone. What Greg Smith calls inefficiency is better called protection of the innocent.