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appear to be entitled to a new tenancy unless precluded
by Section 22 (1) (b) of the Landlord and Tenant
Act, 1931. That provision stated that he shall not be
entitled to a new tenancy where it appears to the court
that such landlord requires vacant possession of such
tenement for the purpose of carrying out a scheme of
development'.
The High Court had asked whether that disentitle-
ment must exist at the date of service of the notice of
application to the court or at the date of the hearing.
In his (Mr. Justice Henchy's) opinion it must be at
the date of the hearing.
Mr. Justice Henchy stated that the High Court had
found that, as a matter of probability, the Company
would be given planning permission. In his opinion the
Section enacted that, subject to the provisions of the
Act, the tenant was to get a new tenancy on the
termination of his tenancy. In the present case he
might be deprived of that right only if vacant poses-
sion of the tenement was required for the purpose of
development. The development involved pulling down
existing buildings and erecting a new one, but the
owner could not begin that work until he got planning
permission. If and when he got planning permission he
would then require vacant possession, but not until
then. At best it could be said that vacant possession
would be required sometime in the future for a scheme
of development. At worst, it might never be required
for that purpose.
Until planning permission came to hand, the owner
could not possibly require vacant possession for that
purpose, so, until then, the landlord could not satisfy
the Court that he required vacant possession for the
specified purpose.
[Dolan v. Corn Exchange Corporation and Vico
Estates—Supreme Court*per Henchy J.—unreported—
10 May 1973.]
Silence in Court
At present there is no obligation upon an accused to
say anything in his own defence because the law pre-
sumes a man innocent unless and until the prosecution
can prove his guilt to the jury beyond any reasonable
doubt.
The proposed change—one of many contentious pro-
posals by the Committee under active and sympathetic
consideration by the Lord Chancellor, Lord Hailsham
—recommends that:
# the prosecution and the judge should be able to draw
"adverse inferences" to the attention of the jury where
an accused chooses to remain silent in court. "It should
be regarded as incumbent on him to give evidence."
# the failure of the accused to give evidence denying
prosecution allegations should be construed as being
capable of corroborating their validity.
# the judge should be able to call formally on the
accused to give evidence. This would "have value in
demonstrating to the jury that the accused had the
right, and the obligation, to give evidence but declined
to do so."
The 14 members of the Criminal Law Revision Com-
mittee—half of them from the senior judiciary—had
adopted as the intellectual basis for these changes a
dictum by the 19th century philosopher Jeremy Ben-
tham : "Innocence claims the right of speaking, as guilt
invokes the privilege of silence." The net effect would
be to transfer the burden of proof to the defence to
prove innocence, for a jury would be likely to conclude
that a man who remained silent must be guilty.
The traditional view of the right to silence was
presented by Lord Devlin in the famous Bodkin Adams
murder trial in 1957. "Dr. Adams has the right not to
go into the witness box .. . and he has not done so.
Therefore there is no evidence from Dr. Adams. . . .
But let me tell you this, that it would be in my judg-
ment, indeed more than my judgment—I can add it
as a matter of law—utterly wrong if you were to regard
Dr. Adams's silence as contributing in any way toward
proof of guilt. It does not and cannot."
In the Ince case, the jurors reported : "We are finding
it very difficult to conclude in view of there being no
defence."
After nearly seven hours, the judge, Mr. Justice Mel-
ford Stevenson, called it a day and ordered a retrial. He
had most properly reminded the jury that they should
draw no inference of guilt from Ince's refusal to give
evidence saying : "Do not allow yourselves to be pre-
judiced against him because of the things he has said
or not said."
Under the present law, a judge—but not the prosecu-
tion—can make limited comment on the refusal of an
accused to give evidence. But Mr Justice Melford
Stevenson discovered the limits in 1968 when his con-
duct of a case was found by the Court of Appeal to
have included a "very strong" comment on the fact
that an accused had chosen to remain silent and not
give evidence. Accordingly, a manslaughter verdict was
substituted for the murder conviction.
Under the new system, this protection would dis-
appear. Ronald Dworkin, professor of Jurisprudence at
Oxford University, said yesterday : "Under the new pro-
posals we would have had the spectacle of the judge
asking an accused to take the stand, telling the jury
that he had a duty to do so and that the jury could
draw inferences of guilt if he refused."
The right to silence in court has not been central
to the fierce criticism of the Criminal Law Revision
Committee report from practising barristers and legal
organisations. Abolition of the caution, of silence in the
police station and wider hersay evidence, have made
the headlines.
But if the prosecution is unable to persuade the jury
to convict an accused on just the evidence brought
against him, the.absolute right to silence in court pro-
tects an accused from having to prove his innocenc
in any way.
Among the features of the inconclusive Barn Murder
trial in Chelmsford Crown Court last week was a rare
demonstration of a principle of English justice threat-
ened with abolition under law reform proposals by the
Criminal Law Revision Committee. This is known as
the "right to silence". George Ince, accused of murder,
refused to go into the witness box to give evidence and
was eventually acquitted at the second trial.
(Alex Finer,
Spectrum,
13 May 1973)
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