22 Mar 2008


and research confirms those who choose to refuse to answer police questions are convicted at a higher rate than other suspects. The obvious conclusion to be drawn from this is that suspects in very serious cases, who have very damning evidence put to them by police, simply do not have an answer, because they are guilty.

The right to silence is a fundamental human right enshrined in the European Convention on Human Rights to which both UK and Portugal are signatories. However, in the early 1990s research found that simply allowing suspects to repeatedly say "no comment" during police interview was making it very difficult for police, in certain cases, to prove their case; serious criminals, who chose to exercise this right, were sometimes being acquitted.

It is recognised under the Police and Criminal Evidence Act that the purpose of interviewing suspects on tape in the UK is "to gain evidence". So, the law was changed to state that those who refuse to provide an explanation when given an opportunity by the police, or refuse to explain where they were at a certain time etc may have "adverse inferences of guilt drawn against them by the jury at trial". If they fail to provide an explanation to the police, at the time, but then do so at trial, again adverse inferences may be drawn.

As has been widely reported, Kate McCann, in particular, refused to answer police questions in Portugal when she was given a proper opportunity to explain the evidence against her. It has also been reported that the Portuguese Prosecutor has now indicated they will not be given a further interview to give them another opportunity to explain. It has also been reported that Kate and Gerry McCann, contrary to what they have always stated, are not prepared to return to Portugal and voluntarily assist the police.

In my opinion they are behaving in the manner of serious criminal suspects that our law was changed to deal with. I wonder if, in Portugal, similar adverse inferences will be drawn as a result of the failure to co-operate in police interrogations and their failure to attempt to explain the evidence against them. I think it will..

If the McCanns or their advisors genuinely believed that getting the Daily Express to say "they are innocent" as actually going to make any difference at all to the criminal case against them, how disappointed they must be.


If you would like to read the law in more depth please see below:

England limits the right to silence and moves towards an inquisitorial system of justice.
by Gregory W. O'Reilly
Britain's Parliament has adopted Prime Minister John Major's proposal to significantly curtail the right to silence.(1) The new law will allow judges and juries to consider as evidence of guilt both a suspect's failure to answer police questions during interrogation and a defendant's refusal to testify during trial.(2) Supporters of the new law had argued that change was greatly needed because the right to silence was "a charade which [has been] 'ruthlessly exploited by terrorists.'"(3) Proponents had also diminished the significance of the proposed changes, contending that the accused's silence will simply become "an item of evidence ... scarcely a major infringement of a defendant's liberty ... [and that the change] ... should dissuade offenders from thwarting prosecution simply by saying nothing."(4)

Major's new law will curtail the right to silence by allowing judges and jurors to draw adverse inferences when a suspect remains silent. It is the latest in a series of similar proposals by English police and politicians,(9) and it adopts restrictions on the right to silence which Parliament imposed on Northern Ireland in 1988.(10)

The new law contains four parts:

(1) judges and jurors may draw adverse inferences when suspects do not tell the police during interrogation a fact relied upon by the defense at trial if, under the circumstances, the suspect could have been expected to mention the fact; (2) if the accused does not testify, judges and prosecutors may invite the jury to make any inference which to them appears proper--including the "common sense" inference that there is no explanation for the evidence produced against the accused and that the accused is guilty;(11) (3) judges and jurors may draw an adverse inference when suspects fail to respond to police questions about any suspicious objects, substances, or marks which are found on their persons or clothing or in the place where they were arrested; and (4) judges and jurors may draw adverse inferences if suspects do not explain to the police why they were present at a place at or about the time of the offense for which they were arrested.(12)

Police failure to obtain confessions has not lead to the release of significant numbers of criminals. In fact, only a small percentage of suspects fail to answer police questions, and evidence reviewed by the Royal Commission suggests that they are convicted at a slightly higher rate than suspects who answer police questions.(14)

Moreover, even if Major's new law increases confessions and convictions, it will not reduce crime, because if the criminal justice system has a failing, it is not found in the low percentage of cases lost in courts, but in the high percentage of cases where the criminal is never caught. For example, while only twelve percent of reported crimes end up in court, over ninety percent of those cases end in conviction.(15)

Even if Major's new law does ot follow the pattern of similar proposals, and succeeds in incrementally raising the number of confessions and the conviction rate, it will do nothing about the vastly greater number of cases where no suspect is caught.

Curtailing the right to remain silent will shift the criminal justice system from its accusatorial focus on proof by witnesses and extrinsic evidence, to an inquisitorial focus on the interrogation of suspects to gain evidence of their guilt. This change will undermine the accusatorial system of justice, jeopardizing many of its benefits. Among these benefits is the foundation of an open and democratic society--a strictly limited government, restrained in its ability to compromise individual dignity, privacy, and autonomy. Such a move is inconsistent with the inherent distrust of authority which helped shape limited and democratic government

England's new limits to the right to silence could influence policy in the United States. One cannot escape the significance of the fact that,

as Ronald Dworkin noted, "the ancient right [to silence] is about to be extinguished in the nation which invented it."

Moreover, unlike Singapore, which has adopted similar limits, Britain is a democracy; it has not become a police state, and citizens may still criticize the government.

This democratic context makes the new limits on the right to silence appear more credible and less extreme.

Like their counterparts in England, some American law enforcement officials have advocated limiting the right to silence. For instance, in 1989, the United States Department of Justice advocated adopting a litigation strategy to urge the Supreme Court to allow adverse inferences from silence to remove a "shelter" for the guilty and provide an incentive for the accused to testify.

Others have denigrated the right to silence as a "relic of the Star Chamber" which is no longer relevant in today's criminal justice system and have advocated limiting the right, and adopting the inquisitorial system of justice in the United States

Advocates of this view could find a responsive audience in the United States, as the press, the public, and politicians focus on crime and an extraordinary array of proposals aimed at its control

Thus, England's attempt to control crime by limiting the right to silence merits close study, especially in light of the potentially fundamental impact of such a change on the American system of justice.

The development of the right to silence in England spanned hundreds of years(25) and was intimately tied to the great struggle between rival systems of criminal procedure-the accusatorial common law courts and the inquisitorial ecclesiastical courts.(26) These systems were fundamentally divided on a key method of investigation and adjudication: reliance on the accused to furnish testimonial evidence of their guilt. The common law courts disfavored this method and came to rely primarily upon independent evidence. By contrast, confession was the essential component of the inquisitorial system employed by the ecclesiastical courts.


Anonymous said...

Hi, very relevant post. In earlier reports of McCann he is quoted as saying that "the DNA results, and we don't know what they are, will show we are innocent". Surely the DNA is forensic evidence whatever it shows. So it seems desperate for CM to say now that there is "no evidence".

Why would Portugal waste millions of pounds investigating a criminal case for six months if there were "no evidence". They would be the laughing stock of the EU; hardly likely.

Wizard said...

Thank you for this very informative post.

viv said...

Hello both

This thread did not exactly take off, but I am glad it was helpful anyway, everyone went on the top thread so only just looked in here.

TBH This is what I cannot understand when reading the arguments of the pro-parents, keep saying they have nothing on the McCanns and their status as arguidos will be lifted in April. Do they really believe that Det Super Prior would have just gone over there for three days and arranged the further evidence gathering required for a case they will then shelve. I just do not think they have any concept of how much genuine police work there is available for police to do or how much all of this is costing. Not to mention weeks of painstaking work by the FSS. As you say how can forensic evidence against them clear them, for goodness sake!

Apparently there are a large number of police working on this case in two jurisdictions just to try and delay the inevitable climb down by the PJ. If that were the case the investigating judge would have forced them to drop this weeks or months ago..they really do have better things to do with their time and money. Persecution complex - not that they did anything they are just being victimised!

Oh please!

Anonymous said...

Outstanding post. Best commentary I have read on the self-incriminating use of the silent act.

As a Catholic, and I am a very serious Catholic, the McCann's refusal to fully cooperate with the investigation into the mysterious disappearance of their daughter is a horror to behold. Not only is it a gravely immoral act of injustice against helpless Maddie and her unfortunate siblings but it is also against all of society, which is divinely bound by law.

Personally, I thank God that public attention has finally been taken off the soap opera side of this terrible tragedy and refocused on the McCann's refusal to cooperate. I have always thought the soap opera was just a diabolical ploy to keep attention off the parent's ongoing unjust behaviour. Grace is at work. Salve Regina, mater misericordia...

viv said...

Thanks Anon.

The truth is Kate and Gerry McCann are simply not prepared to incriminate themselves.

Their concern has always been about their own precarious legal position and how they can defend themselves. Hence their claim that their arguido status prevents them looking for Madeleine. Clearly it does not, and neither does it prevent them from fully co-operating with police. It is their guilt and their overwhelming desire for self-preservation that prevents their co-operation.

This is where the focus should be as you rightly point out. People should stop making excuses for this couple and see the reality of the situation. It has been a diabolical soap opera and it is high time it was brought to an end.

Justice for little Madeleine is what is important here. The parents have demonstrated they are not victims of some phantom offenders, they are the offenders and merely wish to be perceived as victims.

Viv x