Clause 23
Counter-Terrorism Bill
10:15 am
Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)
I am not unsympathetic to the anxieties expressed by the hon. Member for Somerton and Frome, and there is a long history of arguing about whether we should be entitled to draw adverse inference from silence. At one time, under our legal principles, that was prohibited.
My experience in the days before adverse inference could be drawn was that in certain cases juries had no difficulty drawing adverse inference from silence, notwithstanding the fact that they were told specifically by the judge that they should not do so. Equally, my impression in so far as I have the seen the working of the adverse inference system operating since—I have done so on a number of occasions—is that it does not seem to have made much difference the other way either. If the jury believes that there is a good reason why someone might have decided to remain silent, whatever adverse inference is suggested, it does not make it. If, on the other hand, it cannot think of a reason why someone did not say something at an earlier stage that they now put forward in court, for example, it draws its own conclusions.
For those reasons, although I would be prepared to engage in a debate as to whether we should restore the right to silence generally, I am not sure that any special safeguard is required in this context. It seems to me that post-charge questioning is post-charge questioning. It clearly falls into a slightly different category, and counsel representing a defendant would have no difficulty in pointing out that such matters were put to the defendant at a later stage. Defendants can, as the hon. Gentleman is aware, say that their legal advisers told them to say nothing, and the jury can make of that exactly what it will. A special protection is not required, as we agreed a long time ago, under a previous Conservative Government, the principle of changing it. I had some reservations at the time, but as so often happens with changes that are introduced to try to make the criminal justice system more efficient, they turn out not to make much difference.
Another classic example is that of letting in previous convictions, which the hon. and learned Member for Medway (Mr. Marshall-Andrews) touched on so well. It was suggested that that would be a short cut to convicting defendants, but it seems to have led to longer trials, because everyone’s character is now thrown in left, right and centre during the trial process, which previously did not happen.