The Gazette 1972

Law Changes Exceed even Police Demands by MICHAEL ZANDER

Sweeping changes to the rules of evidence which, if implemented, could undoubtedly tilt the balance of justice in favour of the prosecution, were proposed by the Criminal Law Revision Committee yesterday. Some of the more radical proposals go beyond what even the police had called for. The report, which comes after eight years of study, was welcomed by both the Home Office and the Police Federation but fell foul of civil liberty groups and legal associations. Mr. Jefferey Gordon, general secretary of the British Legal Association, which represents solicitors, said the whole content of British justice could be at stake. Justice, the British section of the International Commission of Jurists, feared the committee had failed to provide adequate safeguards for the innocent, and the National Council for Civil Liberties accused it of "an abandon more appropriate to the casino than the court." In the Commons, the Home Secretary, Mr. Reginald Maudling, described the report as a "framework for early and necessary reform" but said he would take account of the views expressed by interested bodies. As forecast in the Guardian proposals include the abolition of the caution and a suspect's right to silence. The report recommends that the police no longer say that the suspect need not say anything. On the con- trary, he should be warned that failure to mention any fact which he wishes to rely on at his trial can be held against him. The warning should be given in writing at the mom- ent a suspect is charged and jury or magistrates could later be invited to draw any inferences from failure to mention relevant facts prior to the written warning. It was the restriction on the right to silence which Mr Tony Smythe, general secretary of the NCCL, was most concerned with. "These are more menacing than anything predicted before the publication of the report for they cover not merely the appearance in court but the crucial and damaging time within which the suspect remains in police hands," he said yesterday. "The suspect who omits to tell the police something that will help his defence is to be made to suffer in two ways. First, his omission may be subjected to adverse comment subsequently at his trial. Secondly, the omis- sion may be used to corroborate other evidence negative to his defence. "In this situation he needs legal advice but the com- mittee makes no reference to the right to consult a solicitor. As this concept has already been attacked by the Lord Chief Justice and, incredibly enough by the Law Society itself, it seems likely that the omission is intentional." Mr. Ronald Bell, Q.C., M.P., speaking for the Crim- inal Law Committee of the Monday Club, also had reservations on this point, although generally welcoming the report. He said it would be dangerous if any strong inference were to be drawn from silence under ques- tioning and the wording of the draft would need reconsideration.

It was sensible to abrogate the rule that the prosecu- tion could not comment on the failure of the accused to give evidence. But the report went too far in propos- ing that the accused should be formally called on to give evidence. This procedure could lead to "elements of farce" and'might attach too much significance to the accused's silence. The proposals on admissibility of evidence of pre- vious convictions also needed most thorough consid- eration "for it is highly charged with possible conse- quences for the vital presumption of innocence" he said. The committee, under the chairmanship of Lord Justice Edmund Davies, was set up to advise the Home Secretary. All ten previous reports have been adopted by the Government of the day. Yesterday's report is accompanied by a draft bill but the Government is unlikely to move to introduce legislation until the autumn. The report makes no proposals to alter the basic feature of criminal trial—the assumption that a defen- dant is innocent until proved guilty—or the role of the jury. However, the suggestion that the accused should lose his right to remain silent in the witness box and also his right to make an unsworn statement from the dock would mean a fundamental change in procedure. He would be formally called to give evidence and warned that failure to do so could be followed by adverse com- ment. A wife could also give evidence for the prose- cution. It is also proposed that Judge's Rules on interrogation should in future be drawn up and issued by the Home Office, though on the advice of the judges. Proposals benefiting the prosecution include: (1) Abolition of the rule that a confession is inadmis- sible if made as the result of a threat or inducement. In future a confession would be inadmissible if made as the result of oppressive treatment or of a threat or inducement likely in the circumstances to make a con- fession unreliable. (2) Previous convictions could be introduced where the accused admits the facts but denies that he had the state of mind required to prove the case. Previous convictions could be used to rebut a defence of accident or mistake. (3) Allowing the prosecution to rebut indirect repre- sentations that the accused is of good character (say, by wearing a respectable suit) by introducing evidence of previous convictions and past misconduct. (4) Making a spouse a competent witness in all cases, and compellable in cases of violence against a child of the household under sixteen. (5) Abolition of the rules requiring corroboration of the unsworn evidence of children (unless the offence is a sexual one). (6) Abolition of the warning against relying on uncor- roborated evidence of accomplices or the sworn evid- ence of children. Instead the judge would have a general discretion to warn where appropriate. #Continueud on page 237

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