THE RIGHT to silence may be reinstated if key cases set to be heard in the European Court of Human Rights later this year are successful.
But practitioners are divided over the likely result of the cases. Many believe the hearings of former Guinness chair Ernest Saunders and Northern Ireland kidnapper John Murray could see the UK backtracking on its decision to abolish the right in the 1994 Criminal Justice and Public Order Act.
Saunders, forced to answer questions put by Department of Trade and Industry and Serious Fraud Office investigators, claims he was denied a fair trial. Murray, convicted in a Diplock Court four years ago, is challenging the “adverse inference” drawn from his silence, and the lack of legal advice available to him in custody.
Anthony Scrivener QC says it is “highly probable” the right will be re-established as the result of the first non-caution case to reach Europe. “The first case that goes to Europe will result in the European Court criticising it to such an extent that it would have to be repealed.”
Justice's legal officer Kate Akester says a positive response to the European case may prompt the UK to reassess its legislation.
“If the Murray case wins in Strasbourg it will be very persuasive in terms of changes that need to be made in the context of jury trials.”
But Michael Mansfield QC says the outcome of the cases will not make “the slightest difference” to UK law. “I don't think this government or any future government has the remotest intention of doing anything about it. It will stay abolished and that is it.”