PLANS to allow courts to draw an adverse inference from an accused person's silence will require five new cautions and much more work from lawyers, the Law Society claims.
Roger Ede, secretary of the society's criminal law committee, says the single caution proposed by the Government under the Criminal Justice and Public Order Bill is “unworkable, incorrect and misleading”.
He says it will result in a complex system, placing a burden on the police and taking up more of lawyers' time.
“This increases the scope for legal argument in court and means legal advisers will have to stay in police stations until the suspect is charged. We are not celebrating the fact that the bill will put a lot more money in lawyers' pockets,” says Ede.
Cautions will have to be drafted to cover a variety of situations, depending on whether the police arrest someone in the street or a police station and if they question someone who is not under arrest or if they are charging them.
A suspect found with a bloody knife near the scene of a stabbing would require a separate caution because the drawing of an inference under clauses 36 and 37 – which require a suspect to account for the finding of an object, substance or mark or their presence at a particular place and time – does not depend on what is said later in defence.
Ede says the Government's proposed caution states the suspect must mention any defence “now”, that is at the moment of the caution. A suspect arrested on the street should be questioned later at a police station where the interview would be recorded on tape. The caution also makes it unclear whether someone must volunteer defence information if the police fail to ask pertinent questions.
Criminal Law Solicitors' Association chair, Judith Naylor, says: “We will get to the point where we have trials within trials on whether the suspect understood the caution and whether it was administered correctly.”