The right of silence is the right of a suspect to saynothing in the face of police questioning1 and isjustified as a protection from self-incrimination2.
According to Palmer, this is also known as the ‘actual’ right to remain silent3. Theright of an accused in a trial to remain silent provides the privilege againstself-incrimination which is the act of exposing oneself ‘to an accusation or charge of crime; to involve oneself oranother in a criminal prosecution of the danger thereof’4 and thebroader notions of the rule of law espoused by the liberal tradition5 Torturesand forced confessions in interrogating suspects were well known to happen inmost nations forcing the suspects to expose the evidence and information whichare vital to them6.Recent debate has argued that no disadvantages should attack to a defendant’s refusal to co-operate with thepolice or to testify7 ittherefore refers to the ‘commonlaw principle that normally tribunals of fact should not be invited orencouraged to conclude, either by judges or prosecutors, that a defendant isguilt merely because he has refused to respond to allegations or has refused totestify in court in his own defence8 The origins of the right of silence are not clear.
It wasnot until the nineteenth century that defendants were allowed to testify intheir own defence9in England and Wales, the right of suspects to refuse to answer questionsduring their actual trial was well established at common law from theseventieth century, which is the body of law derived from judicial decisions ofcourts and similar tribunals10,following the collapse of the political courts of Star Chamber and Commissionwhich possessed the power to compel witnesses to testify under oath11.Compulsory testimony upon oath subsequently led to aroused hostility and angeramongst the public. The right to remain silent before one’s accusers emerged in England as abasic democratic right established by public agitation long before it becamethe subject of judicial consideration12.
TheCriminal Law Revision Committee stated in its Eleventh report that the commonlaw principle did not fully emerge until the nineteenth century when the courtsattempted to offset disadvantages to the accused cause by the prohibitionagainst defendant’s testimony; the poor qualityof juries, magistrates and legal representation, the indecent haste with whichtrials were then conducted and the provision of insufficient rights of appeal. Arecorded report of defendant’srefusal to answer questions were presented and used against defendant at trail.It must be noted that there are two distinct periods where the right is usuallyused. The first is the pre-trial right, and is the main right of a suspectduring the questioning session by the police. Secondly, accused were also notedto exercise their right during the real trial in the court room. An importantcase which protects these two rights is Petty & Maiden v R where the HighCourt said ‘…the denial of thecredibility of that late defence or explanation by reason of the accused’s earlier silence is just another wayof drawing an adverse inference…againstthe accused by reason of his or her exercise of the right of silence.
Such an erosion of the fundamental rightshould not be permitted…’13 and thisright evolved from distrusts shown by the judiciary itself. The existence of Star Chamber Court was also anotherfactor in the establishment of this right but it was abolished in 1641.However, the right to silence was only recognised in the English law in 1912.It was originally proposed by the Home Secretary to the King’s Bench to look at the problem andsolve it; when it leads into and included in the Judges’ Rule 1912. This rule provides a set of instructions,procedures and rules which must be followed by the police when interrogatingsuspects. It is intended to replace all old and different guidance and methodsused by the police force. It should be made clear that the Judges’ Rule is merely a set of code ofconduct and not a law. Justice Lawrence agreed this in the case of R v Voisin14 .
Ifthe police fail to follow this rule, the judge will have the discretion toexclude any evidence in the trial15 Priors to 1912, no official guidance was given to thepolice on how far they should go when interrogating or taking statements fromsuspects or prisoners16. Thiswas not to say that the police in the nineteenth century were allowed unlimitedscope when carrying out their investigations17. In thebeginning of the twentieth century objections arose in the Courts about policeprocedure when in 1906 matter came to a head when one Chief Constable wrote tothe Lord Chief Justice asking him to give a ruling, clarifying thecircumstances in which a caution should be used18. Manysimilar requests were made until 1912 when the judges formulated the first fourJudges’ Rules19 Theserules are not governed by statue and are not to be found in any legal work aspart of the English Criminal Law but they were merely rules for the guidance ofthe police20.These rules were initially a great assistance to the police and the courts asit was generally accepted that statements taken in accordance with them werenot challenged.
21One of the rules drawn in Judges’ Ruleis as follows; any interrogation conducted in police custody as long as it doesnot go beyond confessions made under fear and without will. Over years furtheradditions were made and finally the rule was included in the Police andCriminal Evidence Act 198422 The intermingling of the investigative and judicial roleswas not formally divided until 1848, when the interrogation of suspects wasmade solely a police matter, with the establishment of the modern policeforces. Defendants giving evidence in court became commonplace to such anextent that by 1957, it was actually a shock when a defendant did not giveevidence. When suspected serial killer John Bodkin Adams decided, on the adviceof his lawyer, not to give evidence, the prosecution, the gallery and the judgewere surprised23Inthe view of Melford Stevenson, junior counsel in the prosecution (and later aprominent judge), speaking in the early 1980s: “It should be possible forthe prosecution to directly examine an accused ‘It wasa clear example of the privilege of silence having enabled a guilty man toescape’24. TheJudges’ Rules, with the inclusion of a caution on arrest of the right tosilence, were not taken in by the government until 1978.
However, the rightswere already well established by case law as was the necessity of no adversecomments, the principle being that the defendant does not have to prove hisinnocence — the burden of proof rests onthe prosecution. The right to remain silent “does not denote any singleright, but rather refers to a disparate group of immunities, which differ innature, origin, incidence and importance.”25 Five further rules were added to the original four Rulesin 1918, and the rules were further explained in 1934 in a Home Office Circular536053/23. The Rules were reissued in 1964 as Practice Note (Judge’s Rules) (1964)1 WLR 152, and were replaced in England and Wales in 1986 by Code C made underthe Police and Criminal Evidence Act 1984 (PACE)26 27 aguideline that largely preserves the requirements set out in the Rules. ThePolice and Criminal Evidence Act 1984 (PACE) is an Act of Parliament whichinstituted a legislative framework for the powers of police officers in Englandand Wales to combat crime and provide codes of practise for the police forcesto exercise28Before 1984, laws governing powers of the police were fragmentary andinsufficient, leading to misconduct of the police and miscarriages of justice,apparent in the case of the Birmingham Six, where manipulation of evidence ledto the false conviction and imprisonment of the suspects.29ThereforePACE was welcomed as an improvement by both the police and law professionals,suggesting that both groups considered the powers and regulation sufficient It has also been said that the English Law has ‘all but abolished’ the pre-trial right of silence30 becauseof the law in s. 34 of the Criminal Justice and Public Order Act 1994 whichplaces an obligation on the accused to mentioned facts when being questioned orcharged is they intend to later rely on them in heir defence, when they couldreasonably have been expected to raise them.
31 The Actalso places provisions on their presence in a particular place and objects theymay have on them. The provisions do not compel an accused to speck but may provide’irresistible pressure’ to do so.32 So inessence, the Criminal Justice and Public Order Act ‘introduces the general principle of allowing the drawing ofadverse interferences from the silence of the accused.
A change in law was requiredbut this change would need to be legislated in such a way so as not to breachan individual’s human rights in regards toArticle 6 of the European Convention on Human Rights (ECHR) which aims toensure that everyone is entitle to a fair trial. But in the case of Murray v.UK (1996) 22 EHRR 29 it was argued that s.34 was in fact in breach of Article 6of the ECHR. John Murray v United Kingdom was a case heard by theEuropean Court of Human Rights in 1996 regarding the right to silence and the legalityof the reduction in the right so as to allow for adverse interferences to bemade33.
JohnMurray was one of eight people arrested on January 7, 1990 in Belfast, NorthernIreland under the Prevention of Terrorism (Temporary Provisions) Act 1989, hewas cautioned as specified in the Criminal Evidence (Northern Ireland) Order1988. Following his arrest and over twelve interviews at Castlereagh, totallingover twenty-one hours in the next two days, Mr Murray refused to answer anyquestions despite being warned each time that “a court might draw suchcommon sense inferences as appeared proper from his failure or refusal todo so.”34In ECHR, he claimed the denial of any legal assistance and adverse inferencesdrawn were in breach of Article 6 of the Convention. ECHR rejected his claimand ruled there is no absolute right to silence and defendant must give anexplanation when the situation clearly requires him to do so.35 Anotherrecent case where this applies is the case of O’Halloran& Fracis v UK. Both of the applicants were charged under s.
172 of the RoadTraffic Act 1988 for failing to provide necessary information when requested.They relied on Article 6 of the Convention as a defence but the European Courtrejected this appeal and was in favour of UK approving the Government has itsright to force motorists to self-incriminate. What can be drawn from these casesis that the convention does not give an absolute power of right of silence butit is given in regard to the situation36 so althoughs.
34 does not create a legal duty to speak, it undoubtedly does place furtherpressure upon a suspect to speak creating a ‘inchoatenorm’ to that effect.37 It is suggestedby Hedley J that prosecutors should be discouraged from using the Act for fearof ‘…. further complicating trials andsumming-up by invoking this statute unless the merits of the individual caserequire that his should be done.’38 Bucke’sreport suggests that ‘theEuropean Court of Human Rights has held that the interferences from silence provisionsdo not in themselves breach the European Convention on Human Rights.
However,seeking to found a conviction solely on interferences would be a breach, aswould the drawing of interferences from silence during any period when thesuspect had been denied legal advice’39 but accordingto Fenwick, the curtailment of the right to silence under the Criminal Justiceand Public Order Act ‘had thepotential to lead to a breach of Article 6 on the basis that it infringes the presumptionof innocence under Article 6(2) and the right to freedom fromself-incrimination.40 According to the European Court of Human Rights in Murrayv United Kingdom, the right of silence of an accused person was not absolute inthe sense that no adverse interferences could ever be drawn from the trial fromthat silence41.Debates whether it is permissible to draw interferences from silence before theCriminal Justice and Public Order Act 1994 was passed have extended throughdecades. Changes made to the Criminal Justice and Public Order Act 1994 weremany until the right to silence was undermined under sections 34-37. Sections 34and 35 provided that adverse interferences could be drawn if ‘appear proper’42 in circumstanceswhere the accused relies on facts not mentioned during interview. The prosecutionmay draw attention to the defendant’s useof silence, as may judges in their summing up to the jury43 Other statutory provisions which also hinders the privilegeagainst self-incrimination are the Criminal Justice Act 187 which under this Actthe Director of the Serious Fraud Office ‘may bynotice in writing require the person under investigation or any other person toproduce at such place as may be specified in the notice and either forthwith orat such time as may be so specified, any specified documents which appeal to theDirect to relate to any matter relevant to the investigation or any documentsof a specified which appear to him so to relate’ and ‘require the person producing them toprovide an explanation of any of them’44 Thecourt in Smith v Director of the Serious Fraud Office said that ‘the power of the Serious Fraud Officeas defeating the privilege against self-incrimination even after the suspecthas been charged, and has also limited the scope of the privilege in civilproceedings so that it is not available where the prosecuting authorities stateunequivocally that information relieved in the civil proceedings will not beused in criminal proceedings against the person providing it’45 1A Palmer, Principles of Evidence (1998) 160 cited in Macquarie Law Journal(2001) Vol No 1 what of the right to silence2Macquarie Law Journal Barbara Ann Hocking and Laura Leigh Manville 3A Palmer 4Black’s Law Dictionary (5th ed.). 1979.
p. 690.5Macquerie lw journal 6https://www.lawteacher.
net/free-law-essays/administrative-law/what-is-the-right-to-silence-administrative-law-essay.php7Modern lae review 53 Mod. L.
Rev (1990) pg 7108Ibid 9Criminal Evidence Act 1898, s.1 cited in modern law review 53 10Black’s Law Dictionary – Common law (10th ed.).
2014. p. 334.
11J.H Wigmore, A Treatise on Evidence (Boston: The McNaughton Revision, LittleBrown. 1960) Vol VIII pg 2250 cited in Modern law review 53 12J Wood and A. Crawford, The right of silence: the case for retention (London:The Civil Liberties Trust, 1989) p5 cited in the modern law review 5313Petty & Maiden v R (1991) 173 CLR 9514R v Voisin (1918) 1 KB 53115https://www.
co.uk/&httpsredir=1&article=5358&context=jclcp.g. 85 18Ibid19Ibid 20Ibid pg 86 21Ibid 22https://www.lawteacher.net/free-law-essays/administrative-law/what-is-the-right-to-silence-administrative-law-essay.php#ftn223Devlin, Patrick.
Easing the passing: The trial of Doctor John Bodkin Adams,London, The Bodley Head, 1985. Page 14124Hallworth, Rodney and Mark Williams, Where there’s a will..
. The sensationallife of Dr John Bodkin Adams, Capstan Press, Jersey, 1983. ISBN 0-946797-00-5Pages 232–23325Lord Mustill, R. v. Director of Serious Fraud Office, ex parte Smith (1992))26Shabadine Peart v. The Queen (Jamaica)”. Judgment of the Lords of theJudicial Committee of the Privy Council. BAILII.
14 February 2006. 2006 UKPC527Code C-revised : Code of Practice for the Detention, Treatment and Questioningof Persons by Police Officers (PDF). Home Office. 2012. ISBN 978 0 11 341346 128Police and Criminal Evidence Act 1984 (PACE) codes of practice”. HomeOffice. GOV.UK.
26 March 2013. Retrieved 14 December 2014. 29Zander, M. 2005.
The Police and Criminal Evidence Act 1984. 5th edn. London: Sweet & Maxwell30M Bagaric, ëThe Diminishing ìRightî ofSilenceí (1997) 19 Syd L Rev 366, 366cited in file:///C:/Users/sandy%20pilade/Downloads/2001_volume1_3pdf%20(5).
pdf31file:///C:/Users/sandy%20pilade/Downloads/2001_volume1_3pdf%20(5).pdf32Bagaric, above n 55 cited in ibid 33Wikipedia 34Murray v Uk 35https://www.lawteacher.
net/free-law-essays/administrative-law/what-is-the-right-to-silence-administrative-law-essay.php36ibid37http://flax.nzdl.org/greenstone3/flax;jsessionid=A5D0F211D421FAA839027E0FD9A38DFD?a=d&c=BAWESS&d=D17&dt=simple&p.a=b&p.s=ClassifierBrowse38Keane A, the modern law of evidence page 42739T. Buckes, R.Street and D.
Brown, The Right of silence: The Impact of theCriminal Justice and Public Order Act 1994 (London: Home Office, 2000) viii.40H.Fenwick, Civil Liberties and Human Rights (Oxon: Routledge-Cavendish, 4thed., 2007) 1239. 41D. Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: OUP,2nd ed.,2002) 388 42Criminal justice and public order act 1994 43T. Buck, R.
Street and D. Brown, The Right of Silence: The Impact of theCriminal justice and Public Order Act 1994 (London: Home Office, 2000)4 44Criminal Justice Act 1987, s.2 (3) 45D. Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: OUP,2rd ed.,2002)395