Introduction
As some of the left fall all over themseves referring to the genocide in Gaza and the West Bank as a breach of international law without gaining any criticial distancing from the limitations of “the law,” , the actual nature of law and its procedural acrobatics lies hidden. It is better to remind workers, citizens, immigrants and migrant workers of the real nature of law and not its rhetoric.
This is a continuation of a series that exposes the reality of courts as part of the exposure of the reality of the rule of law.
The series involves quotes from the book by Doreen McBarnet (1983) Conviction: Law, the State and the Construction of Justice as well as short commentaries related to the quotes. I use her book as a way of exposing the real nature of the rule of law and the role of courts in both hiding the real nature of law and enforcing the real nature of the rule of law. (If others know of similar sources that expose the reality of law and the courts, it would be appreciated that they provide information in the “Comments” section.)
Rhetoric
How many of you have seen police inform suspects of their right to remain silent? This is the rhetoric of the law. From McBarnet, page 53:
A RIGHT TO SILENCE?
The idea of a suspect’s right to silence is one that turns up repeatedly in discussions of criminal procedure, particularly from police and prosecution. The Criminal Law Revision Committee of 1972 made a major issue of it, while the 1978 Royal Commission has had its
share of evidence on this theme. Cases sometimes refer to the right to silence too-though they put it in inverted commas (e.g. R. v. Chandler, 1976), a stylistic reflection of the view of strict jurists that the idea of a right to silence is not a legal concept but a perversion of
the legal privilege against self-incrimination. The law puts it in more negative terms: one is not bound to incriminate oneself; there is no dury to answer police questions (Rice v. Connolly, 1966). Popular rhetoric-and one might add particularly prosecution rhetoricthus
turns a negative privilege into a positive right. To lawyers the distinction is significant, with the negative statement carrying much less protection. But whichever way you look at it, the principle is contradicted by legal procedure. Having a right to silence might
suggest it cannot therefore be used against you; having a privilege against self-incrimination might suggest that the very act of taking that privilege up could not therefore be used to incriminate you.
Reality
The reality of law is otherwise. From McBarnet, pages 53-54:
Yet that [using remaining silent against the accused] is exactly what can happen in law.
For a start it depends on when you choose to exercise the right or privilege. If you refuse to answer questions before being cautioned that you need not, your silence can be taken in law to mean guilt. Lord Dip lock in Hall v. The Queen (1971) confronted this by suggesting that everyone had a common law right, even before being cautioned, to stay silent on being accused of or questioned about a crime without the conclusion being drawn (with the inevitable qualification of exceptional circumstances) that silence means guilt. In R. v. Chandler (1976 1 W.L.R.) the trial judge reiterated this right but suggested a neat loophole in his summing up to the jury:You must ask yourself whether he declined to answer questions in the knowledge that he was exercising his common law right to remain silent or whether he remained silent because he might have thought if he had answered he would in some way have
incriminated himself.In short it is not a protective right if you actually use it to protect yourself and it is certainly not a right if you don’t know about it. This is not only a strange piece oflogic in itself but contrary to the normal legal assumption that ignorance of the law is no excuse.
Knowledge of the law is simply assumed if you break it but not if you exercise your rights. The case went to the Court of Appeal where Lord justice Lawton refuted the logic but also refuted any notion of a basic legal right to silence. Lord Diplock’s notion that everyone
had a right to remain silent without guilt being inferred was simply ‘not in accord with the commonsense of ordinary folk’. Silence could mean guilt:The law has long accepted that an accus_ed person is not bound to incriminate himself; but it does not follow that a failure to answer an accusation or question when an answer could reasonably be expected may not provide some evidence in support of an accusation. Whether it does will depend on the circumstances.
This rested on R. v. Christie ( 1914) which established that a person’s reaction to an accusation against him could incriminate him if, by his conduct or demeanour, he seemed to accept the validity of the accusation. Scots law would seem from Lewis v. Blair ( 1858) to have traditionally taken the same line. When one accused person made a statement to a policeman on arrest, and the other stayed silent, the judge agreed it was relevant to propose an inference of guilt from the silence.
Remaining silent in the face of other citizens translates, in the reality of the law, into even a greater presumption of guilt. From pages 54-57:
These cases refer to questioning by a policeman, but silence in the face of accusations by someone who is not ‘in authority’ is taken even more readily as indicative of guilt. In Parkes v. The Queen (1976) it was concluded that where a person is accused of something:
it is reasonable to expect that he or she will immediately deny it and that the absence of such a denial is some evidence of an admission on the part of the person charged and of the truth of the charge.
The basis for this is that the parties concerned are ‘on even terms’, as opposed to being an individual versus the power of the state in the guise of a policeman. But R. v. Chandler (1976) allowed the same reasoning in police-accused encounters so long as the accused was
brought onto even terms by having his solicitor present. This is a nice example of a pattern that occurs repeatedly-adding protection for the accused with one hand and taking it away with the other, the factor introduced to try and add to the accused’s protection becoming the very thing that legitimises reducing it.How these rulings operate in court can be demonstrated by Case 103. The accused was found on the same floor of a multi-storey car park as a car which had been broken into and goods stolen. His car was on the same floor. Some of the stolen goods were on the ground
beside the burgled car but others were not on him or found in the vicinity. The accused said another car had driven past him from that floor as he was approaching. Nonetheless he was incriminated by three things. First because he was there; second because he was
looking at the stolen car with its boot open and the remaining contents on the ground beside it; third, and this was what the judge fixed on, because when the owners of the burgled car arrived and asked what he was doing he walked away towards his own car
without answering. He explained he just wanted nothing to do with it. The judge intervened.judge: It might be suggested that the obvious answer you’d make if you’d been doing nothing is ‘nothing’ [and here the well-spoken judge lapses into Glaswegian dialect] ‘ah’m gaun fur rna caur’. Was that not to invite suspicion?
In cross-examination the prosecutor, again with the active involvement of the judge, made a big issue of this lack of response.
Prosecutor:
Why did you not say-you were the only person in the world who knew-‘a minivan just went down past me. Hurry, if we’re quick we might get him’?
The accused tried to explain that he was anxious about being blamed and did not think so clearly, but the judge, who was taking what in effect was an active cross-examination role, interrupted.
Judge: Look it’s a simple question. Answer it.
Accused: I didn’t know that van had done it. [A point absolutely accurate in law.] It could have been done hours ago for all I knew.
Judge: [angrily] Let me finish. Why did you not say … [repeating the point].
The accused replied he had not had time to think so clearly. The prosecutor took his turn:
Prosecutor: Come, come, come, what kind of story is this you’re trying to tell the ladies and gentlemen. You’re frightened of being accused but you’re so
oft you don’t blame anyone else, Mr MeG.? … Why did you not say instead: ‘Look, old chap, there’s my insurance. There’s my driving licence, I’m a window cleaner, look in
the boot’ like you did to the police? ‘Leave me alone. You’ve caused enough trouble’?The accused maintained he did not know who the real culprit was, it was not his business and in any case he panicked, he was shocked. The judge seized on this:
Judge: You see if you got a shock it might be suggested that was all the more reason for saying it because you ‘hadnae time to think aboot it.’ It would just
bubble out spontaneously.
Prosecutor: But you were content to walk away.The accused was found guilty and sentenced to nine months in prison. The accused’s silence in the face of pre-caution questioning by the police-and even more readily by someone else-may be construed as evidence against him–only ‘in certain circumstances’ but since these circumstances are not specified in advance but assessed after the event this is not a right on which one securely bases a case.
False popular belief in the right to silence may lead to conviction in some circumstances. From McBarnet, pages 57-58:
Sometimes, the circumstances are specified to an extent indeed where they effectively mean the accused has to prove his innocence and can be presumed guilty if he does not answer police questions. In specified cases of suspected theft or receiving where the accused is found in possession of recently stolen goods and remains silent when accused, it is quite legal for the police to infer guilt from his silence and charge him and for the judge to instruct the jury they may infer this too (Cryans v. Nixon, 1955). But the accused is not warned of this. Indeed this is exactly how the gap between rhetoric and actual
procedure may itselffacilitate conviction. The generalised rights of justice-to be proved guilty, to remain silent, to see a solicitor-are not just the property of philosophers; they are publicly coined phrases. People may even believe they have these rights, to be used with impunity, and act upon them. So one gets examples like Case 91. According to the doctrine of recent possession (shared by England and Scotland), when someone is found in possession of stolen goods, theft or receiving can be presumed without proof of the offence being committed unless the accused positively raises a reasonable doubt against it, so long as two additional conditions are met. First the goods must be recently stolen and second there must be other incriminating circumstances. In this case, the driver of a
car stolen some weeks before in another part of the country was stopped by the police, a case of recent possession. The prosecutor produced as his other incriminating circumstances two points. First, the accused’s attitude on being stopped was cool and collected, couldn’t care less’ according to police evidence, whereas the innocent citizen would, he suggested, be indignant. Second he refused to produce his log book or answer questions, and asked to see a solicitor. The defence of course refuted this interpretation.
Remaining silent was not an incriminating circumstance but a constitutional right. His defence rested on… a matter fundamental to our law …. You may think when the evidence is over so quickly it is all clear. But something central is involved-the right of the individual to remain silent. … I do not suggest that a person who stands on his constitutional rights is necessarily innocent but I do suggest that where a person takes up his constitutional rights he is not to be criticised and it is not to be taken by you as an indication of guilt. …
The defence counsel argued on the grounds of the rhetoric of justice but the prosecutor won on the grounds of the law. For what the rhetoric overlooks is the statutory requirements of the 1968 Theft Act that it is up to the accused found in possession of goods that have been
stolen to explain himself if he is not to be assumed guilty. So the prosecutor could point out ‘He had every opportunity to clear the matter up and he failed to do so.’ The judge, in his summing up, focused on the accused’s reply that he would not answer until he had seen a solicitor and asked: ‘Is this the remark of an innocent man?’ (Case 91). Accepting the right against self-incrimination offered in the rhetoric of justice thus itselfbecomes an incriminating circumstance which allows for presumption of guilt.
But what about the issue of the right to silence once police have cautioned the accused? Does the rhetoric of law correspond here at least to the reality of law? Not at all. From McBarnet, pages 58-59:
But what about after the caution? After all it explicitly informs the accused that he need not answer charges or questions and indeed warns that statements may be used against him. It does not, however, warn that silence may also be used in evidence against him. Nor indeed would one expect it to in the same breath as telling him he has a right not to answer. And a whole line of cases like Robertson v. Maxwell (1951) in Scotland and R. v. Naylor in England make exactly this point:
We do not think that the words of the caution can be properly construed in the sense that the prisoner remains silent after being cautioned at his peril and may find his silence made a strong point against him at his trial. (R. v. Naylor 1933)
Yet cases of this being allowed do occur, with the narrow sub-categorisations of legal knowledge to legitimise them. According to Heydon’s text on evidence (Heydon, 1975) a judge may always inform a jury that silence even after caution strengthens the prosecution case, though it does not corroborate it. A judge may invite the jury to take into account in the weight of the evidence that by not mentioning his story to the police, he has deprived them of the opportunity ofinvestigating it (R. v. Littleboy, 1934). Lord justice Stevenson, in R. v. Ryan ( 1 966), distinguished the inference of guilt from allowing silence to affect credibility:
It is we think clear … that it is wrong to say to a jury ‘because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt’; it is quite a different matter to say, ‘this accused, as he is entitled to do, has not advanced at an earlier stage the explanation that has been offered to you today; you, the jury, may take that into account when you are assessing the weight which you think it right to attach to that explanation.’
This distinction-and indeed that between corroboration and adding weight-may be philosophically accurate but the impact is the same. Indeed Lord Justice Salmon in R. v. Sullivan noted:
The line dividing what may be said and what may not be said is a
very fine one and it is perhaps doubtful whether in a case like the
present it would be even perceptible to the members of an
ordinary jury. (1967)Indeed in the appeal on Chandler which began this discussion, Lord Justice Lawton’s rebuke of the trial judge was not so much over the net result, inferring guilt, but over the style of reasoning used, to ‘short circuit the intellectual process which had to be followed.’ In short, such distinctions superficially uphold the rhetoric but boil down to little more protection than taking two logical steps instead of one. So judge and jury mqy infer guilt from the exercising of the right to silence; the accused may incriminate himself by exercising the privilege against self-incrimination.
Conclusion
The rhetoric of law is that the accused has the right to remain silent; the reality of law abolishes such a right in practice.
But the rhetoric of the social-democratic left does not acknowledge in any detailed way the vast difference between the rhetoric of law and its reality. We are still waiting for such social democrats as Herman Rosenfeld (a self-identified Marxist) here in Toronto to explain to us what he means by the following:
Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?
My reply in an earlier post:
Okay. How does Mr. Rosenfeld or other social democrats propose to do that? Frankly, I think that you should not hold your breath while waiting for a response. The article written by Mr. Rosenfeld from which this quote is drawn is dated May 4, 2020. I have searched on the Net to see if Mr. Rosenfeld has elaborated on this assertion since then; I have not been able to find anything at all written by him on the topic since his May 4 article.
This is just social-democratic rhetoric passing it off for something real; it is pretending to be something that it is not. It is fake social reform. Workers, citizen, immigrants and migrant workers hardly need such pretentious rhetoric. Mr. Rosenfeld has no real intention to lift a finger to formulate let alone implement a policy for police “reform.” I suspect that this applies to many other social-democratic or reformist arguments.
Rosenfeld’s statement reflects irresponsibility on the part of the so-called left; they think that they can make any statement that reflects their own preconceived views about the government and the state being capable of being “transformed into “a more humane, limited and autonomous one.”
Do not workers, citizens, immigrants and migrant workers deserve more than such rhetoric? What do you think?
In the context of appeals to international law and genocide in Palestine, should not the left be exposing the limitations of the law, both international and national, in addressing the problems which we face as workers, citizens, immigrants and migrant workers?
The Abolitionary 