Suspect State: the right to silence

The proposed changes to the right to silence in New South Wales should have everyone wondering, and asking, about the empirical evidence the O’Farrell Government is relying on to justify the proposed changes.

We’re told the changes, based on British law, have come after a spike in gang-related drive-by shootings and stabbings in Sydney with police saying they’ve been confronted by a “cone of silence” on the part of victims and alleged perpetrators.

The changes to the right to silence laws in Britain were announced in 1988 after judges failed to convict suspects, allegedly incriminated by other evidence, because they chose to remain silent. The issue was raised in the context of the trials of IRA Provisionals, and the reformers egged on by a Provisional IRA newspaper, Republican News, running the headline ‘Whatever you say, say nothing’ in relation to interrogation.

There’s no excuse for gang related violence in New South Wales, but it’s not exactly an armed paramilitary campaign, aimed at ending the rule of the O’Farrell Government, which one would think would be the bare minimum required to suggest overhauling a fundamental right like the right to silence.

Nonetheless, we’ve been down this path before. Arriving from the United Kingdom after his appointment as NSW Police Commissioner in 1996, within 12 months Peter Ryan was calling for changes to NSW’s justice system that included examining the right to silence.

In August 1997 the NSW Attorney asked the Law Reform Commission to consider the law relating to the right to silence. The Law Reform Commission recommended retaining the right on public policy grounds and fairness to the accused.

The 2000 New South Wales Law Reform Commission report referred to empirical research carried out in England which showed that very few suspects actually exercise the right to silence, which suggested that modifying the right would not significantly increase prosecutions or convictions; it also showed that a suspect’s reliance on the right to silence didn’t reduce the likelihood of charges being laid, or the likelihood of the suspect pleading guilty, or the likelihood of an acquittal at trial.

Even back in 1975 the Australian Law Reform Commission had recommended retaining the existing law in relation to silence when questioned by police, and in 1985 it recommended the codification of the existing law in relation to silence when questioned by police.

The Law Reform Commissions are in good company: the High Court of Australia upheld a suspect’s right to silence in Petty v The Queen.

It was recently reported that Stephen Blanks, secretary for the NSW Council for Civil Liberties, said the right to remain silent under police questioning and the privilege against self-incrimination were generally recognised international standards  “which lie at the heart of the notion of a fair procedure.  It is misleading for the government to justify this change by saying it reflects changes made in the UK in 1994.  The UK has human-rights safeguards which are not part of the law in NSW or Australia”.

So what is really behind this latest call by the O’Farrell Government? Is it really about the recent gang related violence or is it part of an agenda that has been driven for well over a decade?  It seems to me that removing or modifying this fundamental right notches in nicely with other “bipartisan” changes over the last decade or so, like reinvigorated summary offences laws, including consorting laws; State moves to monitor and censor communications; citizens being killed by Tasers or shot by police in questionable circumstances; and finally, with Morris Iemma’s water cannon and with our fearsome riot squad being used in recent times to save us from dire threats like the peaceful Occupy Wall Street protesters in Martin Place and the citizens of Grafton protesting the closure of the gaol.

Little wonder our governments so consistently oppose us having a Bill of Rights.

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