"You have the right to remain silent"... But for how long?

Monday 19 March 2018

The body representing Jersey's lawyers has attacked plans to scrap a defendant's right to remain fully silent in criminal cases against them.

The Law Society of Jersey is urging States Members to reject the proposals when they debate the new Criminal Procedures Law this week.

Under Article 84 of the proposed new law, a defendant who has pleaded not guilty will be under a duty to provide a Defence Case Statement to the Court and to the prosecution setting out the nature of their defence.

The Defence Statement should also indicate which matters of fact the defendant takes issue with in the prosecution case, and why. It should also point out the particulars on which the defendant intends to rely for his or her defence as well as any point of law they might wish to take. Where a defendant does not provide such a statement, or the statement provided is deemed inadequate, the Law Society claim adverse inferences could be drawn.

They say that where a defendant has chosen to remain silent, "as it is their absolute right to do so, a requirement to detail their defence serves to wholly compromise this fundamental right."

Pictured: At present, defendants have no obligation to comment on offences that they are accused of.

As a result, the lawyers have written to all States members to highlight this issue saying they fundamentally disagree with the idea that the requirement to provide a defence case statement does not infringe the rights under to remain silent and be presumed innocent, under the European Convention on Human Rights (ECHR). The letter says: "We fundamentally disagree. Requiring a defendant to state their case is wholly incompatible with the ability of a defendant to maintain their right to silence and, in our view, is likely to represent a breach of their human rights under the European Convention on Human Rights."

However, they say that they will support the use of defence case statements as a "significant benefit in streamlining the management of cases before the island’s courts." They would prefer for them to be optional in all cases, "with no adverse inference able to be drawn where a defendant exercises their right not to lodge such a statement."

Neville Benbow, Chief Executive Officer, The Law Society of Jersey, said: “We urge States Members to implement an amendment to the Draft Law so as to protect the absolute right of a defendant to silence, throughout the process, such that they may, but are not obliged to provide, a defence case statement and that, if they elect not to do so, no adverse inferences may be drawn."