SILENCE IS NOT ALWAYS GOLDEN

When section 34 of the Criminal Justice and Public Order Act 1994 was enacted, it was greeted with enthusiasm by the prosecuting authorities, and with dismay by defence lawyers. After centuries of the right to silence by suspects being questioned by the police, where no adverse inference could be drawn, the 1994 Act changed this basic right and significantly moved the goalposts.

In short, section 34 removed from the accused the right to silence, although it was hedged around with certain caveats. Where an accused person fails to mention any fact subsequently relied on in his defence, and assuming there is a case to answer, the jury, in determining where he is guilty of the offence charged, may draw such inferences from the failure as appear proper.

The debate still rages as to its fairness, but it is now used routinely in criminal trials as added ammunition for the prosecution, the “nod and wink” to the jury, and why would an innocent man remain silent when he has nothing to hide?

Which brings me to the McCanns, briefly shifted from the front pages of the tabloids following the acquittal of Barrie George, but back again with a vengeance. All sorts of documents have now been released into the public domain for our collective edification, the conspiracy theorists are working overtime, and we are no nearer the truth.

The sad facts are well known. The McCanns left their three children alone in their Portuguese holiday apartment when they went out to dine at a nearby restaurant, and when they returned, only two remained. Their daughter Maddie had been mysteriously spirited away, never to be seen again.

As a former resident of the Algarve, and a frequent visitor over the past twenty years, I claim to have some first hand knowledge of the country. We even spent an agreeable fortnight in a villa overlooking Praia da Luz, so I know the area well, and I have some conspiracy theories of my own, which I am not allowed to share with you.

That said, the Daily Mail, that tabloid trumpet of truth, printed the 48 questions asked of Kate McCann by the Portuguese Police at an early stage of the investigation, not one of which she answered. I have read through the questions, and all are relevant and germane to the investigation. It matters not whether she was a designated suspect at the time, because she was innocent of any involvement in her daughter’s disappearance and presumably had nothing to hide but maternal stupidity bordering on disbelief.

I would have thought that she and her husband would have wished to give the police every assistance, the more so because the Portuguese Police seem to be slow on the uptake to say the very least, it may have something to do with the weather, but her decision to remain silent is curious in the extreme. Who can say what turn the investigation might have taken had she co-operated, but too late now for regrets. There may be times when silence is golden, but there are times when it’s better to stand up and be counted.

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david

David is an English barrister, writer, public performer and keynote speaker. His full profile can be found on his website.

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