HC Deb 07 July 1993 vol 228 cc334-9 3.40 pm
Mr. Michael Bates (Langbaurgh)

I beg to move, That leave be given to bring in a Bill to allow judges, magistrates and juries to draw an inference from a suspect's exercise of the right to silence. I am grateful for this opportunity to present a Bill that would allow magistrates, judges and juries to draw an inference from a defendant's use of the right to silence. In ordinary life the way in which a person responds to an allegation made against him may be indicative of his guilt or innocence. In a criminal trial the situation is artificial since the right to silence means that an accused person need not respond at all, either when asked questions by the police or at his trial, and no adverse conclusion is allowed to be drawn from his silence. Is it not a mistake to have evolved a system in which too often the advice from the solicitor when he arrives, albeit quite properly given, can be to say nothing at all?

Jeremy Bentham put it succinctly when he wrote: If all criminals of every class had assembled and framed a system after their own wishes, is not this the first rule which they would have established for their security? Innocence never takes advantage of it: innocence claims the right of speaking, as guilt invokes the privilege of silence". It is worth noting that Jeremy Bentham wrote those words in the 18th century, before the advent of legal aid, the Police and Criminal Evidence Act 1984, and a succession of Criminal Justice Acts which, however well meaning, in the eyes of many have weighted the scales of justice in favour of the defence.

This has been brought about by honest attempts to avoid certain well publicised miscarriages of justice. The balance should be restored and we should recognise that a guilty man walking free from a court is just as serious a miscarriage of justice as an innocent man being found guilty. In my view, the numbers of the former are greatly exceeded by the instances of the latter.

However strong my wish to go some way to restoring this balance through the Bill, I would not wish to move away from the central principle that the prosecution must prove its case and that it is not for the accused to prove his innocence. No man or woman should be forced to speak and nor should silence per se be treated as evidence of guilt. However, the Bill would provide for silence to be treated as corroborative evidence pointing to guilt.

I make no apology for saying that the Bill is primarily designed to free the hands of our police, men and women, as they go into battle on our behalf against a small number of hardened and habitual criminals who know how to work the system. If suspects can avoid having to explain themselves, it is not too difficult to see why over-zealous police officers might be tempted from time to time to invent evidence against someone who they believe is guilty or to place undue pressure to extract a confession which, of course, is admissible evidence at a trial.

The police service is charged with responsibility for investigating offences. In recent years, society has rightly placed increasing demands on the standards that it expects of our police in their detection of crime and in the bringing of safe and successful prosecutions. However, we have overlooked the fact that, if their duty is to investigate effectively, the police need to try to establish exactly what did or did not happen in the situation that led to the suspect's arrest.

It is the view of many of our best police officers, such as Detective Sergeant Cole and Detective Constable Goodwill, who are based at Saltburn in my constituency and whose comments on the frustrations they have experienced on the front line of the battle against crime first inspired me to bring forward the Bill, that a significant number of suspects, by refusing to answer questions, seriously impede the efforts of the investigators to fulfil their function of establishing the facts of the case and, as a result, greatly increase the chances of miscarriages of justice.

It is also correct that there should be safeguards for suspects so that they are fully aware of their rights and responsibilities. First and foremost, I suggest that the caution should be amended to read, "Do you wish to make. any explanation or answer? If you do not say anything, your failure to do so may be held against you at your trial. Anything you do say will be recorded immediately." That caution will he used in conjunction with the already extensive provisions of the Police and Criminal Evidence Act 1984 which might be extended still further to allow suspects who are emotionally upset the opportunity to postpone an interview. Suspects may already ask for a second interview if they wish to react or modify anything said earlier.

Access to free legal advice is in itself a valuable safeguard, as is the requirement that investigative interviews be recorded under controlled conditions. It could be extended still further by the requirement that all interviews should be video recorded.

Any change in our system would require the development of careful rules as to the guidance the judge should give the jury, as is currently provided for in Northern Ireland where we have already given the court the right to draw inferences from a defendant's use of the right to silence in certain circumstances.

Before people get too carried away with the protection of the right to silence, we should recall that not only do the provisions of the Bill already exist and work well in one part of the United Kingdom—Northern Ireland—but the duty to disclose information and answer questions to bodies such as the Inland Revenue and Customs and Excise has already been imposed by statute.

The Financial. Services Act 1987 and the Companies Act 1985 give inspectors the power to compel a defendant to answer their questions, with failure to answer leading to a prosecution and resulting in up to six months' imprisonment. That such powers are at the disposal of the Inland Revenue and Customs and Excise in economic crimes such as insolvency, bankruptcy and liquidations yet far lesser powers are denied the police investigating crimes such as murder and rape is surely a gaping hypocrisy.

In preparing the Bill for presentation before the House, I hoped that its purpose would be simply to endorse the recommendation of the Royal Commission on Criminal Justice. However, it was disappointing that, in a generally encouraging report, the Royal Commission felt able to go only halfway on this vital issue, proposing that a jury should be able to draw an inference from a defendant's use of the right to silence during trial, yet not when being interviewed at a police station.

As a result, the hard core of criminals who are wreaking havoc in our society and who know how to work the system to their advantage remain free to abuse the right to silence. Therefore, the need for the Bill is greater than ever before, and I commend it to the House.

3.48 pm
Mr. Andrew F. Bennett (Denton and Reddish)

I rise to oppose the Bill. I am surprised that the hon. Member for Langbaurgh (Mr. Bates) decided to go ahead with it, given the clear guidance from the Royal Commission yesterday which saw no case for changing the law on the right to silence in pre-trial procedures.

The House should remember why the Royal Commission was set up. The first argument was alarm at a small number of serious miscarriages of justice and the failure of senior judges and police officers to address the problems. History will recall that a small group of lawyers, judges and senior police officers, by repeated attempts to cover up miscarriages of justice, caused major problems for the legal system, doing the police a great disservice.

Dame Elaine Kellett-Bowman (Lancaster)

On a point of order, Mr. Deputy Speaker. Is it in order for an hon. Member to criticise a judge?

Mr. Deputy Speaker (Mr. Michael Morris)

The hon. Member is speaking very generally.

Mr. Bennett

I am well aware that, if I wanted to criticise a judge by name, I would have to do it by motion. I can assure the hon. Member for Lancaster (Dame E. Kellett-Bowman) that, as has just been shown, as long as I refer simply to judges, I am perfectly in order. I stress that that small group of people did the criminal justice system in this country a great disservice.

The second reason for the inquiry was the rising tide of crime. It is clear that when the Royal Commission was taking evidence, a small group of people, possibly some of those who had brought the system into disrepute, together with the Director of Public Prosecutions and one or two others, set about trying to change the agenda from the rising level of crime and the miscarriages of justice.

They were trying to suggest that there is a different problem in this country, and that we should be concerned not about the 200 or 300 people who may wrongly be in prison, but that emphasis should be placed on the idea that there were many guilty people who walk free from the courts. In fact, there is no evidence for that. The real problem is that the majority of guilty people are never brought before the courts. That is the most important point that we should address.

The idea that we should remove the right to trial by jury, introduce proposals for plea bargaining and end the right to silence is extremely damaging. I am sorry that the Royal Commission went any way towards that. We should get back firmly to the basic principle that the right to silence has been an important part of the British legal system for many years. That principle was fought for by people such as John Lilhurn, a leveller, back in the Stuart period. With the abolition of the star chamber court, it was beginning to be enshrined in British law by about 1641 and was finally enshrined in English law in 1848. We should be proud of the right to silence and we should protect it.

The problem is that, in recent years, the emphasis has been to encourage the police to spend all their time questioning suspects and nothing like as much time trying to catch people, especially trying to catch them

red-handed. The emphasis has been on questioning, and not on trying to obtain collaborative evidence. That is extremely worrying.

The problems of questioning are well illustrated in the House every day at Question Time. One builds up frustration and confrontation is created. The more we encourage the police to emphasise questioning, the more likely we are to produce miscarriages of justice. People are persuaded that they must answer and that can be dangerous. Ministers at the Dispatch Box do not have a right to silence. but they appear to exercise the right not to answer the questions and Opposition Members get more and more angry.

It is important that we try to get away from the pressure to produce confessions and that we accept that, sadly, if there is too much pressure, we get false confessions. Police officers say that if innocent people have not committed a crime, they have nothing to hide, so why should they not answer questions? We are all aware that on many occasions people do not want to answer questions, not because they have committed a crime, but because it may be embarrassing to someone else to reveal exactly what they were doing. That may not be particularly honest, but it is not criminal. So we should not force people to have to disclose to a police officer what they were doing when they may have been doing something perfectly innocent.

We know that if we put pressure on people to say what they were doing, they assume that they have to answer. If hon. Members think back to what they were doing a week or a fortnight ago, they will remember some things very accurately. However, on many occasions they will not be able to remember accurately and the correct answer to give to a police officer is, "I cannot remember what I was doing." If the prosecution is allowed to draw an inference from the fact that someone's memory is not good, that will count against the accused person just as much as if he had committed a misdemeanour. A good officer knows that if someone says, "I cannot remember," it may be a much more truthful answer than that of someone who can slickly describe exactly what he was doing.

The Bill would be extremely damaging. The hon. Member for Langbaurgh suggested that we should be very concerned about guilty people being acquitted. I agree. But I do not put that on a par with the conviction of innocent people, which is a double offence because an innocent person has been convicted but the guilty person has gone free.

We should not narrow the rights of the individual but should ensure that more criminals are caught. I appeal to the House to throw out the Bill at this early stage and to make it quite clear that we want to keep the constitutional right to silence.

Question put, pursuant to Standing Order No. 19 ( Motions for leave to bring in Bills and nomination of Select Committees at commencement of public business):

The House divided: Ayes, 68, Noes 121.

Division No. 322] [3.55 pm
Allason, Rupert (Torbay) Butcher, John
Alton, David Butterfill, John
Bates, Michael Colvin, Michael
Batiste, Spencer Couchman, James
Beggs, Roy Davies, Quentin (Stamford)
Bonsor, Sir Nicholas Day, Stephen
Bowden, Andrew Dickens, Geoffrey
Boyson, Rt Hon Sir Rhodes Dicks, Terry
Dover, Den Mills, Iain
Duncan, Alan Moate, Sir Roger
Dunn, Bob Molyneaux, Rt Hon James
Durant, Sir Anthony Montgomery, Sir Fergus
Evans, Roger (Monmouth) Neubert, Sir Michael
Faber, David Onslow, Rt Hon Sir Cranley
Fabricant, Michael Porter, David (Waveney)
Fenner, Dame Peggy Rathbone, Tim
Forsythe, Clifford (Antrim S) Robathan, Andrew
Fox, Sir Marcus (Shipley) Robertson, Raymond (Ab'd'n S)
Fry, Peter Shaw, David (Dover)
Gallie, Phil Sims, Roger
Garel-Jones, Rt Hon Tristan Skeet, Sir Trevor
Gill, Christopher Speed, Sir Keith
Gorst, John Spink, Dr Robert
Grant, Sir Anthony (Cambs SW) Spring, Richard
Hannam, Sir John Stern, Michael
Harris, David Sweeney, Walter
Hawksley, Warren Taylor, Rt Hon John D. (Strgfd)
Heald, Oliver Thomason, Roy
Hendry, Charles Trimble, David
Howell, Sir Ralph (North Waterson, Nigel
Norfolk) Watts, John
Jenkin, Bernard Whittingdale, John
Jessel, Toby
Kellett-Bowman, Dame Elaine Tellers for the Ayes:
Kilfedder, Sir James Mr. Michael Stephen and Mr. James Clappison.
Lidington, David
Maginnis, Ken
Abbott, Ms Diane Howarth, George (Knowsley N)
Ainger, Nick Hoyle, Doug
Ainsworth, Robert (Cov'try NE) Hughes, Roy (Newport E)
Ashdown, Rt Hon Paddy Hughes, Simon (Southwark)
Ashton, Joe Hutton, John
Bayley, Hugh Illsley, Eric
Benn, Rt Hon Tony Janner, Greville
Bruce, Malcolm (Gordon) Jones, Barry (Alyn and D'side)
Burden, Richard Jones, Ieuan Wyn (Ynys Môn)
Byers, Stephen Jones, Lynne (B'ham S O)
Caborn, Richard Kaufman, Rt Hon Gerald
Callaghan, Jim Keen, Alan
Campbell, Ronnie (Blyth V) Kilfoyle, Peter
Carlile, Alexander (Montgomry) Kirkwood, Archy
Clapham, Michael Leighton, Ron
Coffey, Ann Lestor, Joan (Eccles)
Corbett, Robin Lewis, Terry
Corbyn, Jeremy Litherland, Robert
Corston, Ms Jean Lloyd, Tony (Stretford)
Cryer, Bob Llwyd, Elfyn
Cunliffe, Lawrence Loyden, Eddie
Cunningham, Jim (Covy SE) Lynne, Ms Liz
Davidson, Ian McCartney, Ian
Davies, Bryan (Oldham C'tral) Macdonald, Calum
Davis, Terry (B'ham, H'dge H'l) Maclennan, Robert
Enright, Derek McMaster, Gordon
Etherington, Bill McNamara, Kevin
Evans, John (St Helens N) McWilliam, John
Fisher, Mark Madden, Max
Flynn, Paul Mahon, Alice
Foster, Rt Hon Derek Marshall, Jim (Leicester, S)
Foster, Don (Bath) Martin, Michael J. (Springburn)
Galloway, George Maxton, John
Garrett, John Meacher, Michael
Gerrard, Neil Meale, Alan
Godman, Dr Norman A. Michie, Bill (Sheffield Heeley)
Golding, Mrs Llin Michie, Mrs Ray (Argyll Bute)
Graham, Thomas Milburn, Alan
Grant, Bernie (Tottenham) Miller, Andrew
Greenway, Harry (Ealing N) Mitchell, Austin (Gt Grimsby)
Gunnell, John Mowlam, Marjorie
Hall, Mike Mullin, Chris
Hanson, David Oakes, Rt Hon Gordon
Harvey, Nick O'Brien, Michael (N W'kshire)
Heppell, John Patchett, Terry
Hinchliffe, David Pendry, Tom
Hogg, Norman (Cumbernauld) Pickthall, Colin
Hood, Jimmy Pike, Peter L.
Hoon, Geoffrey Prentice, Gordon (Pendle)
Purchase, Ken Stott, Roger
Radice, Giles Turner, Dennis
Rendel, David Tyler, Paul
Robertson, George (Hamilton) Wallace, James
Ross, Ernie (Dundee W) Walley, Joan
Sheerman, Barry Wareing, Robert N
Sheldon, Rt Hon Robert Winnick, David
Short, Clare Wise, Audrey
Simpson, Alan Young, David (Bolton SE)
Skinner, Dennis
Snape, Peter Tellers for the Noes:
Soley, Clive Mr. Harry Cohen and Mr. Andrew F. Bennett.
Spellar, John
Steel. Rt Hon Sir David

Question accordingly negatived.