REMOVING THE RIGHT TO SILENCE IN THE POLICE STATION
by Stephen Odgers
In December 2012, the New South Wales government introduced the Evidence Amendment (Evidence of Silence) Bill 2012 (NSW) into Parliament. Modelled on legislation in the United Kingdom, it significantly qualified the “right to silence” of a person accused of a criminal offence. The legislation was flawed. In March 2013, a revised version was introduced: the Evidence Amendment (Evidence of Silence) Bill 2013 (NSW). It was an improvement over the 2012 Bill and has now passed through Parliament. However, serious questions remain as to whether it should have been enacted.
The 2012 Bill would have amended the Evidence Act 1995 (NSW) by introducing a new provision, s 89A. Section 89 currently prohibits the drawing of an adverse inference from evidence that a person failed or refused:
(a) to answer one or more questions; or
(b) to respond to a representation;
put or made to the … person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.
The 2012 Bill proposed to make s 89 “subject to s 89A”. Section 89A(1) provided as follows:
In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, in answer to any question or in response to any representation in the course of the official questioning of the defendant in relation to the offence, the defendant failed or refused to mention a fact:
(a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and
(b) that is subsequently relied on by the defence in the proceeding.
The term “official questioning” was defined to mean “questions put or representations made to the defendant by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of the serious indictable offence”. An “investigating official” was defined to include “a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior)”.
The nature of the unfavourable inference were to be a matter for the tribunal of fact (usually a jury in the context of indictable offences) although it would be the responsibility of the trial judge to determine what unfavourable inferences would be open to be drawn in the circumstances of the case. The provision itself did not impose any limit on the permissible inference, with s 89A(10) providing an inclusive definition of “inference”: it “includes (a) an inference of consciousness of guilt, or (b) an inference relevant to a party’s credibility”.
As is apparent, the possibility of the drawing of an adverse inference from silence would only be available in “criminal proceedings for a serious indictable offence”, but that includes any offence punishable by imprisonment for at least five years. There were other limitations contained in the Bill. An adverse inference could not be drawn unless:
- the defendant had been given a “supplementary caution” by the investigating official so as to make clear that, if he or she failed or refused to mention a fact subsequently relied on by the defence, an inference may be drawn that may harm his or her defence (s 89A(2)(a), s 89A(10));
- the defendant was “allowed the opportunity to consult a lawyer about the effect of failing or refusing to mention such a fact” (s 89A(2)(b));
- the defendant was, at the time of the official questioning, was at least 18 years of age (s 89A(6));
- the defendant did not, at the time of the official questioning, have a “cognitive impairment”, defined to include “(a) an intellectual disability, (b) a developmental disorder (including an autistic spectrum disorder), (c) a neurological disorder, (d) dementia, (e) a severe mental illness, (f) a brain injury” (s 89A(6), s 89A(10));
- there is some other evidence that the defendant is guilty of the offence (s 89A(3): “Such an inference cannot be drawn if it is the only evidence that the defendant is guilty of the serious indictable offence”).
Notwithstanding these limitations, it was apparent that the provision would significantly qualify the “right to silence” of a person accused of a criminal offence. If an adult not suffering a “cognitive impairment” were given the supplementary caution and given an opportunity to consult a lawyer about “the effect” of failing or refusing to mention some fact “relied on” at trial, silence may result in an “unfavourable inference” being drawn at the trial. In effect, the person would be penalised for choosing to remain silent. The right was thereby undermined.
The justification for the United Kingdom reforms, and for the New South Wales Bills, may be put in simple terms: criminals use the right to silence (or, more precisely the prohibition on the drawing of an adverse inference from exercise of the right to silence in response to police questions) to escape justice. To prevent this, adverse inferences from exercise of the right should be permissible, in appropriate circumstances.
It may be accepted that some of the traditional justifications of the right are of limited persuasive effect. Just because an aspect of criminal procedure has existed for many years does not mean that it should necessarily be regarded as sacrosanct or a fundamental bulwark of freedom. It is not, at least in theory, imposing the burden of proof on the defence to permit reasonable inferences from the conduct of a suspect – if reasonable adverse inferences may be drawn from such conduct as telling lies, it is not clearly apparent why they may not be drawn from a failure to mention a fact later relied on. It is not necessarily “cruel” to present a guilty person with a choice between self-incrimination, telling lies to the police and the drawing of adverse inferences from silence. It is not necessarily “unfair” to put some pressure on a suspect to speak, provide relevant information and, if guilty, admit guilt – police interrogation is not like an adversarial trial or a sporting contest where the adversaries are put on an equal footing to ensure procedural justice. However, there were a number of reasons why the 2012 Bill was still a bad idea.
There is no evidence that the right to silence has allowed significant numbers of criminals to escape justice. As Lord Salmon said in the House of Lords when modifications to the right to silence were being debated, “there is not a vestige of evidence to support” the philosophy that “serious crime can somehow be stemmed by a relaxation of the safeguards which we have built up over the generations to ensure that the innocent shall go free”. The right is only exercised in a small proportion of cases. There is no evidence that a significant number of acquittals turn upon reliance on the right to silence.
The primary justification for the right to silence is to prevent the suspect from being compelled by the state to make incriminating statements (nemo debet seipsum prodere, no one may be compelled to betray himself). Such a principle is fundamental to any civilised system of criminal justice. Abandonment of that principle would encourage the police to use any means they thought appropriate to compel a suspect to confess. The right to silence should be seen as a means to avoid such compulsion. However, if such compulsion can be avoided by other means – by, for example, requiring the presence of an independent lawyer acting for the suspect during all interrogations – the need for the right to silence to guard against compulsion may fall away. Studies show that the effectiveness of psychological manipulations is substantially reduced, if not eliminated, by the presence of a supportive and knowledgeable third person. That is why, in the United Kingdom, legal aid ensures that every suspect has a government-funded lawyer available in the police station to assist all suspects during police interrogation. However, this was not proposed under the 2012 Bill. All that was necessary was that the defendant be “allowed the opportunity to consult a lawyer about the effect of failing or refusing to mention” a fact later relied on at trial. Advice provided over the telephone would be sufficient. The New South Wales government has made it clear that it would not fund lawyers during police interviews. It follows that the proposal was wholly inadequate to ensure that the suspect is not placed under unacceptable pressure by the police to confess.
Further, the proposed requirement that the defendant be “allowed the opportunity to consult a lawyer about the effect of failing or refusing to mention” a fact later relied on at trial would create serious practical difficulties. Since it would be an essential condition that must be satisfied before any adverse inference could be drawn, it would put any lawyer in a very difficult position. Providing legal advice about the legal position under this change to the law would put the client in a worse position than if no advice were provided. That might be justifiable if useful advice could be given as to whether or not it was in the interests of the client to run the risk of such an adverse inference, but it would not be possible to give such advice without being properly apprised of the case against the client and having had the opportunity to speak with the client in a considered way and to take proper instructions. In a majority of cases, lawyers would simply have to tell their client that they cannot give them any advice.
Alternatively, lawyers would advise the client of the legal position under this change to the law but then advise that the client should still decline to answer questions. If lawyers in New South Wales adopted the position that the best advice to clients who consult them over the telephone is to decline to answer questions, the client would run the risk that this provision would be applied at trial. However, obviously enough, that would be resisted on the basis that the defendant could not “reasonably have been expected to mention in the circumstances existing at the time” the relevant fact given the legal advice to decline to answer any questions. It is likely, therefore, that the jury would need to hear evidence about all the circumstances existing at the time of the interview including evidence about what legal advice the defendant received and whether it was reasonable to follow that advice. This would be likely to lead to a waiver of legal professional privilege. Evidence from lawyers about what advice was given may lead to questions about what instructions their client gave them when the advice was given. The confidentiality of the entire process would be lost, only encouraging lawyers to avoid the giving of any advice at all.
Another justification for the right to silence is to provide a mechanism to limit the impact of police trickery in interrogations, particularly through the use of false statements designed to elicit confessions. Making false statements, for example about the existence of damning evidence of guilt, is improper under the Uniform Evidence Law but there is no rule of inadmissibility where such conduct elicits an admission. It is a matter for judicial discretion and courts would be tempted to admit such an admission into evidence while criticising the impropriety. The right to silence allows the suspect to decline to answer questions until fully and accurately informed of the case against him or her. However, if police trickery of this sort can be ameliorated by other means – for example, by requiring the police and prosecutors to disclose to a suspect and an independent lawyer acting for the suspect the evidence against the suspect – the need for the right to silence to guard against police trickery may be diminished. That is why in the United Kingdom there is a culture of continuing obligations of disclosure on the police and prosecution, which applies in the police station. An independent lawyer acting for the suspect in the police station and aware of the evidence against the suspect can provide informed advice regarding the prosecution case. No such obligation on the police or prosecution exists in New South Wales in respect to interrogation in the police station, nor was it proposed under the 2012 Bill.
Finally, there was no evidence presented that the proposed change to the law in the 2012 Bill would have any significant impact on crime. A review in 2000 of the impact of the United Kingdom Justice and Public Order Act 1994 (UK) showed no discernible increase in the number of people charged or convicted and no change in the proportion of suspects providing admissions. It seems highly unlikely that the position would be any different in New South Wales. However, there would be a significant impact on trials where the right to silence had been exercised. There would be extensive litigation as to whether it was open to invite the jury to draw any kind of unfavourable inference in the particular circumstances. As noted above, it is likely that evidence would have to be adduced as to the circumstances in which the right to silence was exercised. Questions of “cognitive impairment” would be raised in many cases. The exact nature of any direction to the jury would be the subject of argument and would probably provide fertile grounds for an appeal against conviction. Evidence given before the judge would have to be given again in front of the jury. The United Kingdom experience is that the comparable legislation there has generated many appeals against conviction, some of them successful. It has become a notorious legal minefield. It would be even worse in New South Wales.
In March 2013, the revised version of the 2012 Bill, the Evidence Amendment (Evidence of Silence) Bill 2013 (NSW), has now passed through the Parliament and will be enacted. It has made a number of substantive changes, plus amendments to the language and structure of the proposed provisions. For example, the term “supplementary caution” has been replaced by the term “special caution” and the content of that required caution has been slightly modified. More importantly, two significant substantive changes may be highlighted:
(a) the unavailability of an adverse inference from silence where the defendant had a “cognitive impairment”, as defined, has been replaced by a much narrower test of whether the defendant was “incapable of understanding the general nature and effect of a special caution” (s 89A(5)(a)); and
(b) quite apart from the requirement that the offender be given the opportunity to consult a lawyer (now specified as a “reasonable” opportunity) about the effect of the special caution, there is a new requirement that “the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time” (s 89A(2)(c)).
It is apparent that the first of these substantive changes is designed to reduce the scope for argument that some “cognitive impairment” of the defendant precluded the drawing of an adverse inference. The much narrower new test will be much more difficult to satisfy, although no doubt arguments about cognitive impairment will still be raised in front of a jury to explain why the right to silence was exercised and why no adverse inference should be drawn.
As regards the second of these substantive changes, it is apparent that it was made in response to the concern that allowing an opportunity to consult a lawyer is not sufficient and that, as in the United Kingdom, adverse inferences should only be available where the defendant was questioned in the presence of his or her lawyer. Of course, the provision does not expressly require that but the requirement that the special caution must be given “in the presence of” the defendant’s lawyer will have the practical consequence that such a lawyer is likely to remain during the subsequent police interview. On the face of it, this change will meet the concern that a suspect is placed under unacceptable pressure by the police to confess. However, it is not as simple as that. The New South Wales government will not fund lawyers during police interviews. Significant practical difficulties with the scheme remain.
The requirement that the defendant have been “allowed the opportunity to consult a lawyer about the effect of failing or refusing to mention” a fact later relied on at trial created serious practical difficulties because providing such legal advice put the client in a worse position than if no advice were provided. The same is true with regard to the giving of the special caution in the presence of the lawyer – many lawyers may take the view that their clients would be better off without the presence of the lawyer at the interview if this will protect the client from the possibility of adverse inferences being drawn from silence. Without being properly apprised of the case (and having had the opportunity to speak with the client in a considered way and to take proper instructions), the best advice may be to tell the client to remain silent and for the lawyer to avoid being present when the client is cautioned. It is not implausible to imagine bizarre scenes in which the police are trying desperately to give the new caution in the presence of a lawyer, while the lawyer is trying just as desperately to not be “present”. Lawyers who work for the Aboriginal Legal Service will be in a particularly difficult position. While they are customarily present during interviews, they will in future be aware that such presence puts the client in a technically worse position than if the client does not have the benefit of a lawyer. Acting in the best interests of the client in such circumstances will a fraught decision.
Other concerns raised in respect of the 2012 Bill remain. Without adopting the United Kingdom culture of continuing obligations of disclosure on the police and prosecution, applicable in the police station, the merits of this scheme are particularly problematic. Given the fact that the right to silence is only exercised in a small proportion of cases, and the absence of evidence that a large number of acquittals turn upon reliance on the right to silence, it may be doubted that it is worth the significant impact on criminal trials that this major procedural change will bring. The costs associated with this legislation are likely to far outweigh any benefits.
The citation for this Editorial is (2013) 37 Crim LJ 75.