TNAG-0260-FCO40-296-Legislation-for-prevention-of-bribery-in-Hong-Kong-1970 — Page 220

·CONTID

Cutting, dated

SUNDAY TIMES

19 JUL 1970

Frank Herrmanu

Hailsham: "Parliament is constantly making mistakes "

of Human Rights and, nearer at hand, the European Convention. Things like no retrospective legislation to the detriment, no confiscation without compensa- tion, and even the old liberties of Magna Charta brought up to date could find a place.

Should such a Bill include the accused's "right to silence "? NO. THIS IS an issue on which Parliament has not expressed a recent view. The Criminal Evidence Bill, which is coming up through the Criminal Law Revision Committee, will, expect, go into this whole thorny question.

I haven't seen the Bill yet, but there may be changes here. Our rules of procedure derive largely from the eighteenth century, when radically different con- siderations applied. Then, the accused could not give evidence on his own behalf and could not be represented by counsel on issues of fact. Things have changed. A sophisticated modern system should, I believe, start with two basic propositions: (a) that the ordinary citizen ought to feel obliged to help the police, and (b) that, equally, the police should not be able to pressurise the ordinary citizen. How can we marry these two principles?

The right to silence is all

essential part of our adversary system of legal trial; but if an accused chooses to keep silent, the prosecution could well have the freedom (which it does not have now) to make the point that this is an extraordinary attitude for an accused person to adopt. Similarly, the caution used by the police might be re-worded, perhaps along the lines" As a member of the public you are expected to help the police, but you are not compelled to. How ever if you don't, it might be commented upon adversely to you in any subsequent trial.' | Can ice expect more Parlia

mentary time to be devoted to reform schemes put up by the

Law Commission?

THE GREAT BOTTLENECK for all law reform is the political atmosphere in the House of Commons. I remember going to Hugh Gaitskell, when he was Leader of the Opposition, on this very matter. I suggested that there were perhaps six or seven Bills a session that could go through, without controversy, by say, the mechanism of a joint select committee of the Commons and Lords, or something similar. He would not look at it.

The reason is difficult for non- Parliamentarians to grasp but was (and is) quite clear to all of

us with Parliamentary experience. Caitskeli thought that if he assisted the process of law-mak- ing generally, even where he had no objection to what was going through, he would be giving the Government more time to push through its main proposals to which he did object. Parliament- ary time is a political weapon.

Of one thing I'm sure-the Law Commission is here to stay.

In Opposition you were very much concerned with the problem of public violence, especially at demonstrations. Do you think that the remedy might lie in enacting a law of criminal trespass?

THERE ARE two problems here. In the first place, criminal sanc- tions against forcible detention and entry already exist, but, if my memory serves me aright, they are embodied in statutes ranging from the reign of Richard II to that of James I. It's! surely better for the police tu act under the authority of Elizabeth II rather than Richard II.

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The other problem relates to situations where the defendant cannot be identified. I'm think ing in particular of cases where masses of people squət in somebody else's property. Now I think this has been solved by the introduction of order 113 iato the Rules of the Supreme Court. This makes legal the issue of au originating summons directed to whom it may concern. The names problem has, it would seem, becn overcome.

I would hope that the problem is now near solution and that a specific criminal law of trespass would be unnecessary.

Do you think that the law is too remote from ordinary people? THERE IS a sense in which the Jaw always should be formal, but that does not imply remoteness. Some people hold the view that the law would be better served if judges and counsel and the rest put away their wigs and other trappings and appeared like ordinary people, I do not share i. They have to do disagreeablej things, it is their job. The ritual! and a certain panoply make it! more bearable, both for them andi those who have to appear before,

them.

But if you mean do I think access to the law through Legal, Aid should be improved, my answer is Yes. And of the schemes mooted for its improvement I think the Law Society's £25 scheme looks the most useful (the £25 scheme would enable solicitors to spend up to this amount in investigating complaints without! immediate recourse to a Legal Aid Committee). But it is quite costly. My estimate is that it would amount to about £1.5 million! annually, and will naturally have to be scrutinised intently by any Government committed, as ours is, to limiting public expenditure.

This would meet ના definite need but it cannot, of course, be the whole answer. Legal aid like: health is probably one of those areas that can always justify higher expenditure. But I would say this: legal aid can never be а substitute for a variety of Good Fishermen' trawling in the sea of society. As an AP I found many people coming to me with what they knew were prob- lems; after discussion it emerged, that what they needed was a doctor, or an accountant, or a councillor or D some cases it priest. Sometimes, but only rarely, advised them to consult solicitor.

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