that payment is due under the section, the amount will be determined by an independent assessor. The Secretary of State has undertaken to pay whatever sum the assessor recommends. Reasonable legal costs incurred by the applicant will be met.
Right of silence
214. In Northern Ireland, the Criminal Evidence (Northern Ireland) Order 1988 enables courts to draw whatever inferences would be proper from the fact that an accused remained silent in four situations:
(a) The "ambush" defence, where having remained silent during police questioning the accused offers an explanation of his conduct for the first time at his trial when he might reasonably have been expected to offer it when being questioned;
(b) Where the prosecution has established that there is a case to answer, and the accused is warned that he will be called to give evidence and that if he should refuse to do so the court may draw such inferences as would
appear proper;
(c) Where the accused fails or refuses to explain to the police certain specified facts such as substances or marks on his clothing;
(d) Where an accused fails or refuses to account to the police for his presence at a particular place.
215. The measures do not remove an accused person's right of silence, and remaining silent will not be an offence. Provisions similar to (c) and (d) above exist in Scotland under section 6 of the Criminal Justice (Scotland) Act 1980.
216. The Government is now considering what amendments should be made to the right of silence in England and Wales. The intention is again not to abolish this right, but to amend it in such a way that defendants cannot obtain an advantage by relying for their defence on a fact that they failed, without good reason, to disclose to the police. The Government has acknowleged that this is a difficult area and has not as yet proposed a solution.
217. A related question is whether comment should be made on and inference drawn from an accused person's failure to testify in court. A Working Group appointed by the Home Secretary to consider these issues produced a report with recommendations in May 1989. The Group suggested that, subject to certain safeguards, a jury or magistrates' court should be able to draw whatever inferences were reasonable from the failure of the accused, when being interviewed or upon being charged, to mention a fact upon which he later relied for his defence. The Group did not feel, however, that failure to answer questions or to mention such a fact should in the present state of the law, be capable of amounting to corroboration or otherwise constitute positive evidence of guilt. On the question of advance disclosure of the defence case, the Group recommended that there should be no requirement for this in magistrates courts, but that it should be introduced progressively in the Crown Court in respect of cases where there was a risk of an "ambush" defence. The Group also recommended that, in the Crown Court, the prosecution should be able to comment upon the defendant's failure to give evidence or to