The Gazette 1973

sion of the tenement was required for the purpose of development. The development involved pulling down existing buildings and erecting a new one, but the owner could not begin that work until he got planning permission. If and when he got planning permission he would then require vacant possession, but not until then. At best it could be said that vacant possession would be required sometime in the future for a scheme of development. At worst, it might never be required for that purpose. Until planning permission came to hand, the owner could not possibly require vacant possession for that purpose, so, until then, the landlord could not satisfy the Court that he required vacant possession for the specified purpose. [Dolan v. Corn Exchange Corporation and Vico Estates—Supreme Court*per Henchy J.—unreported— 10 May 1973.]

appear to be entitled to a new tenancy unless precluded by Section 22 (1) (b) of the Landlord and Tenant Act, 1931. That provision stated that he shall not be entitled to a new tenancy where it appears to the court that such landlord requires vacant possession of such tenement for the purpose of carrying out a scheme of development'. The High Court had asked whether that disentitle- ment must exist at the date of service of the notice of application to the court or at the date of the hearing. In his (Mr. Justice Henchy's) opinion it must be at the date of the hearing. Mr. Justice Henchy stated that the High Court had found that, as a matter of probability, the Company would be given planning permission. In his opinion the Section enacted that, subject to the provisions of the Act, the tenant was to get a new tenancy on the termination of his tenancy. In the present case he might be deprived of that right only if vacant poses- Silence in Court At present there is no obligation upon an accused to say anything in his own defence because the law pre- sumes a man innocent unless and until the prosecution can prove his guilt to the jury beyond any reasonable doubt. The proposed change—one of many contentious pro- posals by the Committee under active and sympathetic consideration by the Lord Chancellor, Lord Hailsham —recommends that: # the prosecution and the judge should be able to draw "adverse inferences" to the attention of the jury where an accused chooses to remain silent in court. "It should be regarded as incumbent on him to give evidence." # the failure of the accused to give evidence denying prosecution allegations should be construed as being capable of corroborating their validity. # the judge should be able to call formally on the accused to give evidence. This would "have value in demonstrating to the jury that the accused had the right, and the obligation, to give evidence but declined to do so." The 14 members of the Criminal Law Revision Com- mittee—half of them from the senior judiciary—had adopted as the intellectual basis for these changes a dictum by the 19th century philosopher Jeremy Ben- tham : "Innocence claims the right of speaking, as guilt invokes the privilege of silence." The net effect would be to transfer the burden of proof to the defence to prove innocence, for a jury would be likely to conclude that a man who remained silent must be guilty. The traditional view of the right to silence was presented by Lord Devlin in the famous Bodkin Adams murder trial in 1957. "Dr. Adams has the right not to go into the witness box .. . and he has not done so. Therefore there is no evidence from Dr. Adams. . . . But let me tell you this, that it would be in my judg- ment, indeed more than my judgment—I can add it as a matter of law—utterly wrong if you were to regard Dr. Adams's silence as contributing in any way toward proof of guilt. It does not and cannot." In the Ince case, the jurors reported : "We are finding it very difficult to conclude in view of there being no defence."

After nearly seven hours, the judge, Mr. Justice Mel- ford Stevenson, called it a day and ordered a retrial. He had most properly reminded the jury that they should draw no inference of guilt from Ince's refusal to give evidence saying : "Do not allow yourselves to be pre- judiced against him because of the things he has said or not said." Under the present law, a judge—but not the prosecu- tion—can make limited comment on the refusal of an accused to give evidence. But Mr Justice Melford Stevenson discovered the limits in 1968 when his con- duct of a case was found by the Court of Appeal to have included a "very strong" comment on the fact that an accused had chosen to remain silent and not give evidence. Accordingly, a manslaughter verdict was substituted for the murder conviction. Under the new system, this protection would dis- appear. Ronald Dworkin, professor of Jurisprudence at Oxford University, said yesterday : "Under the new pro- posals we would have had the spectacle of the judge asking an accused to take the stand, telling the jury that he had a duty to do so and that the jury could draw inferences of guilt if he refused." The right to silence in court has not been central to the fierce criticism of the Criminal Law Revision Committee report from practising barristers and legal organisations. Abolition of the caution, of silence in the police station and wider hersay evidence, have made the headlines. But if the prosecution is unable to persuade the jury to convict an accused on just the evidence brought against him, the.absolute right to silence in court pro- tects an accused from having to prove his innocenc in any way. Among the features of the inconclusive Barn Murder trial in Chelmsford Crown Court last week was a rare demonstration of a principle of English justice threat- ened with abolition under law reform proposals by the Criminal Law Revision Committee. This is known as the "right to silence". George Ince, accused of murder, refused to go into the witness box to give evidence and was eventually acquitted at the second trial. (Alex Finer, Spectrum, 13 May 1973) 144