Ryan Gets it Right….and Very Very Wrong

From yesterday’s NZ Herald

Queen’s Counsel Kevin Ryan has shocked lawyers on the day of his retirement by saying he thinks the right to silence is outdated and should be abolished.

Referring specifically to the killing of the Kahui twins, the 75-year-old courtroom veteran said: “In my view, we are assisting evil by just sitting there and not answering questions.”

And he said juries should be allowed to know a defendant’s criminal history.

He made his comments on Radio NZ’s Nine to Noon show when asked if there were any areas of the law that needed reforming.

“I did not subscribe to the divine right of silence. Those rules were promulgated years ago in Great Britain when the public were uneducated, most of them illiterate.”

He said the right to silence – under which a suspect can refuse to talk to police – was introduced to protect such people, but times had changed and the law needed to change with it.

Mr Ryan said the Serious Fraud Office had the right to make people answer questions, but the police couldn’t do the same thing in serious cases involving human life.

He said that jury members’ knowing about an accused person’s criminal history would give them a clearer picture of the case.

It was wrong that the defence was allowed to challenge a witness’ credibility and imply police had made mistakes, but the Crown was not allowed to reveal an accused person’s convictions.

New Zeal Ryan is spot on in advocating that juries have a right to know of a defendants criminal history.

Patterns based evidence has long been barred (in most circumstances) from NZ courts and justice has suffered as a result.

A jury should have a right to know all relevant information. It is obvious that if an individual has burgled homes to steal cook books on seven previous occasions, he is more likely to commit a similar offence than other citizens.

Patterns of previous behaviour are the strongest indicator of likely future behaviour.

Ryan, however, is completely wrong to advocate the elimination of the right to silence.

No person must be compelled to co-operate with those who seek to injure him or deprive him of his liberty. That must include the most potentially dangerous entity of all-the state.

We give the state huge powers to apprehend and prosecute criminals because we see it as in our long term interest to do so.

However those powers must be clearly defined and constantly reviewed to see they are not impinging on the liberties of innocent people.

If the police have the power to “make you talk” how will they enforce it?

If you don’t want to open your mouth, how do they make you?

In the old days they’d torture it out of you. Nowadays, I think we’d simply see more beatings, threats and blackmail.

While the Kahui case and others like it are immensely frustrating, giving the police the power to force co-operation will diminish all our freedoms.

The Kahui case may have been solved had the police not held back for three days to enable the family to “grieve“.

A police stuff up with their existing powers is certainly no reason to grant them even greater powers.

A forced confession is no confession. If the police can’t prosecute on the evidence available, they should either gather more evidence or abandon the case.

Giving police an “easy” way out will simply make them more lazy and potentially more thuggish.

If the SFO currently has the power to require that suspects give evidence, that power should be immediately abolished.

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