It is now five months since changes were made which limit the rights of silence. Solicitors are left with the problem of advising suspects about an uncertain and complex new law.
The Law Society's Criminal Law Committee has published guidelines which set out the circumstances in which a court should not penalise a silent suspect. A court may unfairly draw an adverse inference if a suspect remains silent because of a solicitor's poor advice and the Law Society's guidelines give solicitors something on which to base their advice until the Court of Appeal gives further guidance.
The society's guidelines also point out that silence continues to be the best course of action in many cases. We will have to wait and see how the courts interpret the new law.
Meanwhile any information about its operation is welcome and the survey conducted by The Lawyer 5 September is a helpful beginning.
Most importantly, the survey tells us that criminal lawyers consider that the changes have increased the likelihood of miscarriages of justice while not leading to more convictions of the guilty.
This was the main message of the Law Society's campaign against these changes. Roger Leng, who carried out research about this for the Royal Commission of Criminal Justice, told MPs at a society briefing in the House of Commons that the new law would not deliver more guilty people behind bars.
A report from Justice revealed that in Northern Ireland, following a similar change in the law in 1988, there was actually a drop in both clear-up and conviction rates.
The mistake that too many people make is to assume that all suspects who remain silent are guilty and that if they are made to talk the police will persuade them to confess.
There are a number of reasons for silence apart from guilt and persuading a guilty suspect to talk will rarely enable the police to obtain a confession. When the police need a confession to make a case, they will lack the information needed to break down the suspect's story and the case will fail for lack of other evidence.
The survey tells us that the changes in the law have made most solicitors only "a little less likely" to advise a suspect to remain silent. The Law Society told MPs that suspects who remained silent through lack of evidence would still do so. In Northern Ireland, a high proportion of terrorist suspects continue to remain silent.
The survey also shows that the new caution is little understood, pressure upon a suspect not to remain silent has increased and the demand for legal advice has risen.
The Justice report had warned MPs that the caution in Northern Ireland was little understood and widely misinterpreted by suspects and the police. The Law Society told MPs that the same thing would happen here.
The new law is too complex for most suspects to understand. Too many people are left thinking they have to reply to the police officer's questions. Although more suspects are calling for legal advice because they do not understand the new caution, most still struggle on without help. This discriminates against the vulnerable and unrepresented suspect, in favour of the professional criminal.
Some commentators regard this as a worrying shift towards an inquisitional system. Gregory O'Reilly, a US public defender, writes in the journal of Criminal Law and Criminology that the right to silence is an "essential element of the accusatorial system of justice. It prevents the operation of the engine which drives the inquisitional system – the power to require, encourage, or force individuals to respond to government questioning…This trade of tangible liberty for the illusion or symbol of security will transform not only the criminal justice system, but also the character of the relationship between citizen and State." So why was the law changed? Because it gives the appearance of being "tough on crime".
Roger Ede is secretary of the Law Society's criminal law committee.