Editorial: Ryan gives us food for thought

Kevin Ryan, QC, one of the most noted barristers in the Auckland criminal courts, retired last week with characteristically blunt criticism of a couple of sacred cows in our system of justice. The right of a suspect to remain silent, and the right to keep a jury ignorant of an accused person's previous convictions, are liberties that Mr Ryan, like every other defence counsel, has used to his clients' advantage throughout his long career. His parting candour has been criticised by lawyers who want to go on taking advantage of those rights, but the sincerity of his views cannot be doubted.

A couple of cases recently have caused many laymen, if not lawyers, to question the right to silence and whether justice is best served by ensuring a jury has no knowledge of an accused's criminal record. Mr Ryan cited the deaths of the Kahui twins and said the right to silence in cases of that magnitude was "assisting evil". It was a liberty that had outlived its purpose, he argued, being conceived in English law many centuries ago when the population was uneducated.

Education, though, does not make much difference to a person in the predicament protected by the right. Native cunning tells a guilty child it is safer to say nothing when confronted. Denied a right to silence, the child's temptation is to lie, and that indeed is what criminals tend to do when no lawyer is around to remind them of the right to silence. A great deal of police time can be spent discrediting criminals' lies and, while that work might help a prosecution, it is probably more efficient for police to assemble their own facts about a crime. Silence, of course, carries its own testimony even if trial judges are obliged to warn juries that nothing can be assumed from an accused person's failure to give an account of himself.

In ordinary life it seems perfectly natural justice to demand an explanation from somebody suspected of doing wrong. The parent, teacher, employer or complaining customer does not recognise a right to silence and thinks it natural and fair to deduce guilt from failure to offer a satisfactory explanation. Why not the criminal law?

The answer can only lie in the seriousness of the consequences for those adjudged guilty of a crime. Ultimately the state alone has the power to forcibly deprive a person of liberty or property and it is part of the English liberal tradition that a person at risk of such loss cannot be compelled to assist the proceedings against him. The magnitude of the crime, contrary to Mr Ryan's argument, probably adds to the case for a right to silence.

Similar arguments are used to justify the exclusion of criminal records from evidence normally given to juries. To the lay person it seems contrary to justice, if not downright deceptive, to ask juries to decide issues of fact that depend on one person's word against another and leave the jury unaware that the accused person has been accused of similar offences before. Again, in ordinary life a person in authority could not ignore previous offences when someone in their charge is accused of something similar, and would feel quite justified in using that knowledge to decide whom to believe.

As Mr Ryan points out, the right to silence is denied to those investigated by the Serious Fraud Office. If the sophistication of fraud warrants lesser rights, what about other crimes that are hard to prove? There may be a case for the police to compel evidence from people who plainly witnessed a criminal act, just as there may a case to inform juries of an accused's record when a trial must be decided on one person's word against another. Mr Ryan has left his peers with much to ponder.