House of Lords
| Author | J A Coutts |
| DOI | 10.1177/002201839405800103 |
| Published date | 01 February 1994 |
| Date | 01 February 1994 |
| Subject Matter | House of Lords |
HOUSE
OF
LORDS
EFFECf
OF ACCUSED'S SILENCE IN NORTHERN IRELAND
Murray v
DPP
This question of the accused's right to silence seems ready for renewed
and seemingly endless debate. While one side has exclusively in mind the
underprivileged lower range of the criminal classes and the other the
higher level of the more sophisticated lawbreaker, there is little chance
of a consensus, as the two sides to the debate are arguing from different
premises. Meanwhile, the effect of the accused's silence as seen in the
criminal process of Northern Ireland must be of interest to those who
urge (and those who oppose) a change in the traditional common law
answer to the question.
It
has been said in the English courts that it is 'not clear' on the
authorities how far a judge may properly go in commenting on the failure
of the accused to give evidence or how far he may go in inviting the jury
to draw inferences against the accused because of that failure. In its
comment on these questions, the Criminal Law Revision Committee in
its 11th Report stated its opinion that the present law in practice is too
favourable to the accused and it recommended that inferences which can
be drawn as a matter of common sense should be drawn. That
recommendation appears to be the basis of the law introduced in
Northern Ireland by the
Order
of 1988. In Murray v
DPP
(1993) 97
Cr App R 151, the House of Lords considered the correctness of the
inferences drawn by the trial judge (sitting without a jury) when trying
attempted murder and firearms charges. The appellant claimed that the
Order
was no more than declaratory of the common law and that, as the
common law authorities are at the moment, neither judge nor jury may
draw common sense inferences from the accused's silence. What use can
be made of the decision of the House outside Northern Ireland must
therefore depend upon whether the Order is declaratory of, or goes
beyond, the common law. In the event, the House decided that the
Order
went beyond the common law (which was also the opinion of the
Court of Appeal), so that any pronouncement of the House upon the
common law is arguably obiter. Indeed, the decision of the House that
the judge was entitled to draw the inferences which he in fact drew may
be regarded as no more than a decision on the facts, for, as Lord Diplock
stated in Haw Tua Tau v Public Prosecutor [1982] AC 136, what
inferences may properly be drawn from the accused's refusal to give
evidence 'depend on the circumstances of the particular case and is a
question to be decided by applying ordinary common sense'. The court
cannot conclude that the accused is guilty simply because he has not
given evidence, for the prosecution must establish at least a prima facie
case. Thus, the question in the present case can be stated to have been
whether there were some circumstances before the court which justified
66
To continue reading
Request your trial