New Zealand – Victims of violent crime want an end to defendants “hiding” behind the right to silence in court but civil rights experts and defence lawyers argue that this would be a serious erosion of human rights.
Sensible Sentencing Trust spokesman Garth McVicar said the law sheltered defendants who kept quiet during trials. “It [the change proposed] doesn’t mean defendants will be forced to talk it just means if they don’t, juries can take it into account.”
Abolishing the right to silence is one of a long list of demands by the trust to the Government intended to tip the scales of the justice system in favour of victims, not offenders.
The trust’s lawyer, former ACT MP Stephen Franks, said New Zealand should follow Britain’s lead in allowing police to advise defendants that their silence could be used against them, and in permitting juries to “draw a sensible inference”.”There are occasionally valid reasons for invoking the right to silence but it has become part of the ritual game-playing by justice system insiders.”
Police-rape complainant Louise Nicholas, who lost her own case but sparked a damning inquiry into police conduct, said the right to silence should be abolished. “Nine times out of 10, the defendant exercises his right to silence, but the victim has to take the stand and have her entire life raked over and her character put under the spotlight.”
However, defence lawyer Greg King said judges already had the discretion to direct juries to take a defendant’s silence into account, though it was rarely done. “The right to silence is fundamental to the justice system because it means people can’t be pressured into making untrue confessions.”
He dismissed calls for victims to have the right to rebut evidence. “The victim’s position is necessarily an extremely emotional one … but the trial process is about deciding if a particular person is guilty or innocent. That process should not be overwhelmed by the emotional claims of victims.”
Council for Civil Liberties spokesman Michael Bott said the British law change, after the September 11 terrorist attacks, was widely condemned by constitutional experts as “draconian”.
The right to silence and the presumption of innocence were “fundamental to protect the rights of the individual against the might of the state”.
“This National Government has already shown it is hostile toward human rights, with [Justice Minister] Simon Power’s bid to push through compulsion orders, which will force people to give evidence to the police or be imprisoned, and its plans to ram people into shipping containers.”
Police and Corrections Minister Judith Collins told the conference: “Law-abiding New Zealanders are sick and tired of seeing their rights eroded and, in many cases, ignored in favour of the rights of criminals. This Government is not standing for that.”
A spokesman for Mr Power said the Government’s law and order programme was focused on improving public safety and giving victims more rights.
WHAT THE TRUST WANTS:
Sensible Sentencing Trust seeks these justice system changes:
* Mandatory 25-year sentence after third violent offence.
* Life sentence to mean “life”.
* Right of silence to be abolished.
* Legal aid for victims, not offenders.
* Financial support for victimsto pay for all incurred costs.
* No concurrent sentences.
* Juries to be given proper remuneration.
* Disclose previous convictions of offender.
* Greater accountability of judges and lawyers.
* Include victims in court proceedings.
* End lengthy court delays.