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Open letter | Lawyers urge politicians to protect defendants’ fundamental right to silence

Law Society of Jersey Open letter on right to silence

OPEN LETTER

To: States Members

States Assembly

St Helier

Jersey

Dear States Member

Lawyers urge politicians to protect defendant’s right to silence

The Law Society of Jersey, which represents the Island’s legal profession, urges States Members to reject proposals within the Draft Criminal Procedure (Jersey) Law which will, if approved, compromise a defendant’s right to silence in criminal matters.

Under Article 84 of the Draft Criminal Procedure (Jersey) Law, a defendant who has pleaded not guilty will be under a duty to provide a Defence Case Statement to the Court and to the prosecution.

As detailed in Article 85 of the draft Law, a Defence Case Statement is a written statement which:

  • Sets out the nature of the defence, including any particular defences on which the defendant wishes to rely;
  • Indicates the matters of fact on which the defendant takes issue with the prosecution;
  • Sets out, in the case of each such matter of fact, why the defendant takes issue with the prosecution;
  • Sets out the particulars of the matters of fact on which the defendant intends to rely for the purposes of his or her defence; and
  • Indicates any point of law (including any point as to the admissibility of evidence or an abuse of process) which the defendant wishes to take, and any authority on which he or she intends to rely for that purpose.

At Article 87, the draft Law states that adverse inferences can be drawn where a defendant does not, for any reason, provide a Defence Case Statement or where such a statement, where provided, does not contain the particulars required under Article 85 (as referenced above).

However, it is clear that, where a defendant has chosen to remain silent, as it is their absolute right so to do, a requirement to detail their defence serves to wholly compromise this fundamental right.

It is of considerable concern that the report accompanying the draft Law avers (at Paragraph 28, Page 15) that the requirement to provide a defence case statement does not infringe the rights in Article 6(1) and (2) of the ECHR to remain silent and be presumed innocent.  We fundamentally disagree.  Requiring a defendant to state their case is wholly incompatible with the ability of a defendant to maintain their right to silence and, in our view, is likely to represent a breach of their human rights under the European Convention on Human Rights.

That is not to say that defence case statements do not have a place in our justice system.  Indeed, they can be of significant benefit in streamlining the management of cases before the Island’s courts.

Our clear preference would be for defence case statements to be optional in all cases, with no adverse inference able to be drawn where a defendant exercises their right not to lodge such a statement.

Making a defence case statement compulsory runs the risk, in our respectful view, of infringing the human rights of defendants who have exercised their right to remain silent.

As a consequence, we urge States Members to implement an amendment to the Draft Law so as to protect the absolute right of a defendant to silence, throughout the process, such that they may, but are not obliged to provide, a defence case statement and that, if they elect not to do so, no adverse inferences may be drawn.

Yours sincerely

Neville Benbow

Chief Executive Officer

The Law Society of Jersey

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