The defendant is guilt merely because he has

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The right of silence is the right of a suspect to say
nothing in the face of police questioning1 and is
justified as a protection from self-incrimination2.
According to Palmer, this is also known as the ‘actual’ right to remain silent3. The
right of an accused in a trial to remain silent provides the privilege against
self-incrimination which is the act of exposing oneself ‘to an accusation or charge of crime; to involve oneself or
another in a criminal prosecution of the danger thereof’4 and the
broader notions of the rule of law espoused by the liberal tradition5 Tortures
and forced confessions in interrogating suspects were well known to happen in
most nations forcing the suspects to expose the evidence and information which
are vital to them6.
Recent debate has argued that no disadvantages should attack to a defendant’s refusal to co-operate with the
police or to testify7 it
therefore refers to the ‘common
law principle that normally tribunals of fact should not be invited or
encouraged to conclude, either by judges or prosecutors, that a defendant is
guilt merely because he has refused to respond to allegations or has refused to
testify in court in his own defence8

 

The origins of the right of silence are not clear. It was
not until the nineteenth century that defendants were allowed to testify in
their own defence9
in England and Wales, the right of suspects to refuse to answer questions
during their actual trial was well established at common law from the
seventieth century, which is the body of law derived from judicial decisions of
courts and similar tribunals10,
following the collapse of the political courts of Star Chamber and Commission
which possessed the power to compel witnesses to testify under oath11.
Compulsory testimony upon oath subsequently led to aroused hostility and anger
amongst the public. The right to remain silent before one’s accusers emerged in England as a
basic democratic right established by public agitation long before it became
the subject of judicial consideration12. The
Criminal Law Revision Committee stated in its Eleventh report that the common
law principle did not fully emerge until the nineteenth century when the courts
attempted to offset disadvantages to the accused cause by the prohibition
against defendant’s testimony; the poor quality
of juries, magistrates and legal representation, the indecent haste with which
trials were then conducted and the provision of insufficient rights of appeal. A
recorded report of defendant’s
refusal 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 usually
used. The first is the pre-trial right, and is the main right of a suspect
during the questioning session by the police. Secondly, accused were also noted
to exercise their right during the real trial in the court room. An important
case which protects these two rights is Petty & Maiden v R where the High
Court said ‘…the denial of the
credibility of that late defence or explanation by reason of the accused’s earlier silence is just another way
of drawing an adverse inference…against
the accused by reason of his or her exercise of the right of silence.  Such an erosion of the fundamental right
should not be permitted…’13 and this
right evolved from distrusts shown by the judiciary itself.

 

The existence of Star Chamber Court was also another
factor 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 and
solve 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 interrogating
suspects. It is intended to replace all old and different guidance and methods
used by the police force. It should be made clear that the Judges’ Rule is merely a set of code of
conduct and not a law. Justice Lawrence agreed this in the case of R v Voisin14 . If
the police fail to follow this rule, the judge will have the discretion to
exclude any evidence in the trial15

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Priors to 1912, no official guidance was given to the
police on how far they should go when interrogating or taking statements from
suspects or prisoners16. This
was not to say that the police in the nineteenth century were allowed unlimited
scope when carrying out their investigations17. In the
beginning of the twentieth century objections arose in the Courts about police
procedure when in 1906 matter came to a head when one Chief Constable wrote to
the Lord Chief Justice asking him to give a ruling, clarifying the
circumstances in which a caution should be used18. Many
similar requests were made until 1912 when the judges formulated the first four
Judges’ Rules19 These
rules are not governed by statue and are not to be found in any legal work as
part of the English Criminal Law but they were merely rules for the guidance of
the police20.
These rules were initially a great assistance to the police and the courts as
it was generally accepted that statements taken in accordance with them were
not challenged.21
One of the rules drawn in Judges’ Rule
is as follows; any interrogation conducted in police custody as long as it does
not go beyond confessions made under fear and without will. Over years further
additions were made and finally the rule was included in the Police and
Criminal Evidence Act 198422

 

The intermingling of the investigative and judicial roles
was not formally divided until 1848, when the interrogation of suspects was
made solely a police matter, with the establishment of the modern police
forces. Defendants giving evidence in court became commonplace to such an
extent that by 1957, it was actually a shock when a defendant did not give
evidence. When suspected serial killer John Bodkin Adams decided, on the advice
of his lawyer, not to give evidence, the prosecution, the gallery and the judge
were surprised23In
the view of Melford Stevenson, junior counsel in the prosecution (and later a
prominent judge), speaking in the early 1980s: “It should be possible for
the prosecution to directly examine an accused ‘It was
a clear example of the privilege of silence having enabled a guilty man to
escape’24. The
Judges’ Rules, with the inclusion of a caution on arrest of the right to
silence, were not taken in by the government until 1978. However, the rights
were already well established by case law as was the necessity of no adverse
comments, the principle being that the defendant does not have to prove his
innocence — the burden of proof rests on
the prosecution. The right to remain silent “does not denote any single
right, but rather refers to a disparate group of immunities, which differ in
nature, origin, incidence and importance.”25

 

Five further rules were added to the original four Rules
in 1918, and the rules were further explained in 1934 in a Home Office Circular
536053/23. 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 under
the Police and Criminal Evidence Act 1984 (PACE)26 27 a
guideline that largely preserves the requirements set out in the Rules. The
Police and Criminal Evidence Act 1984 (PACE) is an Act of Parliament which
instituted a legislative framework for the powers of police officers in England
and Wales to combat crime and provide codes of practise for the police forces
to exercise28
Before 1984, laws governing powers of the police were fragmentary and
insufficient, leading to misconduct of the police and miscarriages of justice,
apparent in the case of the Birmingham Six, where manipulation of evidence led
to the false conviction and imprisonment of the suspects.29Therefore
PACE 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 because
of the law in s. 34 of the Criminal Justice and Public Order Act 1994 which
places an obligation on the accused to mentioned facts when being questioned or
charged is they intend to later rely on them in heir defence, when they could
reasonably have been expected to raise them.31 The Act
also places provisions on their presence in a particular place and objects they
may have on them. The provisions do not compel an accused to speck but may provide
‘irresistible pressure’ to do so.32 So in
essence, the Criminal Justice and Public Order Act ‘introduces the general principle of allowing the drawing of
adverse interferences from the silence of the accused. A change in law was required
but this change would need to be legislated in such a way so as not to breach
an individual’s human rights in regards to
Article 6 of the European Convention on Human Rights (ECHR) which aims to
ensure 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 6
of the ECHR.

 

John Murray v United Kingdom was a case heard by the
European Court of Human Rights in 1996 regarding the right to silence and the legality
of the reduction in the right so as to allow for adverse interferences to be
made33. John
Murray was one of eight people arrested on January 7, 1990 in Belfast, Northern
Ireland under the Prevention of Terrorism (Temporary Provisions) Act 1989, he
was cautioned as specified in the Criminal Evidence (Northern Ireland) Order
1988. Following his arrest and over twelve interviews at Castlereagh, totalling
over twenty-one hours in the next two days, Mr Murray refused to answer any
questions despite being warned each time that “a court might draw such
common sense inferences as appeared proper from his failure or refusal to
do so.”34
In ECHR, he claimed the denial of any legal assistance and adverse inferences
drawn were in breach of Article 6 of the Convention. ECHR rejected his claim
and ruled there is no absolute right to silence and defendant must give an
explanation when the situation clearly requires him to do so.35 Another
recent case where this applies is the case of O’Halloran
& Fracis v UK. Both of the applicants were charged under s.172 of the Road
Traffic Act 1988 for failing to provide necessary information when requested.
They relied on Article 6 of the Convention as a defence but the European Court
rejected this appeal and was in favour of UK approving the Government has its
right to force motorists to self-incriminate. What can be drawn from these cases
is that the convention does not give an absolute power of right of silence but
it is given in regard to the situation36 so although
s.34 does not create a legal duty to speak, it undoubtedly does place further
pressure upon a suspect to speak creating a ‘inchoate
norm’ to that effect.37 It is suggested
by Hedley J that prosecutors should be discouraged from using the Act for fear
of ‘…. further complicating trials and
summing-up by invoking this statute unless the merits of the individual case
require that his should be done.’38

 

Bucke’s
report suggests that ‘the
European Court of Human Rights has held that the interferences from silence provisions
do not in themselves breach the European Convention on Human Rights. However,
seeking to found a conviction solely on interferences would be a breach, as
would the drawing of interferences from silence during any period when the
suspect had been denied legal advice’39 but according
to Fenwick, the curtailment of the right to silence under the Criminal Justice
and Public Order Act ‘had the
potential to lead to a breach of Article 6 on the basis that it infringes the presumption
of innocence under Article 6(2) and the right to freedom from
self-incrimination.40

 

According to the European Court of Human Rights in Murray
v United Kingdom, the right of silence of an accused person was not absolute in
the sense that no adverse interferences could ever be drawn from the trial from
that silence41.
Debates whether it is permissible to draw interferences from silence before the
Criminal Justice and Public Order Act 1994 was passed have extended through
decades. Changes made to the Criminal Justice and Public Order Act 1994 were
many until the right to silence was undermined under sections 34-37. Sections 34
and 35 provided that adverse interferences could be drawn if ‘appear proper’42 in circumstances
where the accused relies on facts not mentioned during interview. The prosecution
may draw attention to the defendant’s use
of silence, as may judges in their summing up to the jury43

 

Other statutory provisions which also hinders the privilege
against self-incrimination are the Criminal Justice Act 187 which under this Act
the Director of the Serious Fraud Office ‘may by
notice in writing require the person under investigation or any other person to
produce at such place as may be specified in the notice and either forthwith or
at such time as may be so specified, any specified documents which appeal to the
Direct to relate to any matter relevant to the investigation or any documents
of a specified which appear to him so to relate’ and ‘require the person producing them to
provide an explanation of any of them’44 The
court in Smith v Director of the Serious Fraud Office said that ‘the power of the Serious Fraud Office
as defeating the privilege against self-incrimination even after the suspect
has been charged, and has also limited the scope of the privilege in civil
proceedings so that it is not available where the prosecuting authorities state
unequivocally that information relieved in the civil proceedings will not be
used in criminal proceedings against the person providing it’45

 

1
A Palmer, Principles of Evidence (1998) 160 cited in Macquarie Law Journal
(2001) Vol No 1 what of the right to silence

2
Macquarie Law Journal Barbara Ann Hocking and Laura Leigh Manville

3
A Palmer

4
Black’s Law Dictionary (5th ed.). 1979. p. 690.

5
Macquerie lw journal

6
https://www.lawteacher.net/free-law-essays/administrative-law/what-is-the-right-to-silence-administrative-law-essay.php

7
Modern lae review 53 Mod. L. Rev (1990) pg 710

8
Ibid

9
Criminal Evidence Act 1898, s.1 cited in modern law review 53

10
Black’s Law Dictionary – Common law (10th ed.). 2014. p. 334.

11
J.H Wigmore, A Treatise on Evidence (Boston: The McNaughton Revision, Little
Brown. 1960) Vol VIII pg 2250 cited in Modern law review 53

12
J 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 53

13
Petty & Maiden v R (1991) 173 CLR 95

14
R v Voisin (1918) 1 KB 531

15
https://www.lawteacher.net/free-law-essays/administrative-law/what-is-the-right-to-silence-administrative-law-essay.php#ftn2

16https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=https://scholar.google.co.uk/&httpsredir=1&article=5358&context=jclc
p.g 86

17
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=https://scholar.google.co.uk/&httpsredir=1&article=5358&context=jclc
p.g. 85

18
Ibid

19
Ibid

20
Ibid pg 86

21
Ibid

22
https://www.lawteacher.net/free-law-essays/administrative-law/what-is-the-right-to-silence-administrative-law-essay.php#ftn2

23
Devlin, Patrick. Easing the passing: The trial of Doctor John Bodkin Adams,
London, The Bodley Head, 1985. Page 141

24
Hallworth, Rodney and Mark Williams, Where there’s a will… The sensational
life of Dr John Bodkin Adams, Capstan Press, Jersey, 1983. ISBN 0-946797-00-5
Pages 232–233

25
Lord Mustill, R. v. Director of Serious Fraud Office, ex parte Smith (1992))

26
Shabadine Peart v. The Queen (Jamaica)”. Judgment of the Lords of the
Judicial Committee of the Privy Council. BAILII. 14 February 2006. 2006 UKPC
5

27
Code C-revised : Code of Practice for the Detention, Treatment and Questioning
of Persons by Police Officers (PDF). Home Office. 2012. ISBN 978 0 11 341346 1

28
Police and Criminal Evidence Act 1984 (PACE) codes of practice”. Home
Office. GOV.UK. 26 March 2013. Retrieved 14 December 2014.

29
Zander, M. 2005. The Police and Criminal Evidence Act 1984. 5

th edn. London: Sweet & Maxwell

30
M Bagaric, ëThe Diminishing ìRightî of
Silenceí (1997) 19 Syd L Rev 366, 366
cited in file:///C:/Users/sandy%20pilade/Downloads/2001_volume1_3pdf%20(5).pdf

31
file:///C:/Users/sandy%20pilade/Downloads/2001_volume1_3pdf%20(5).pdf

32
Bagaric, above n 55 cited in ibid

33
Wikipedia

34
Murray v Uk

35
https://www.lawteacher.net/free-law-essays/administrative-law/what-is-the-right-to-silence-administrative-law-essay.php

36
ibid

37http://flax.nzdl.org/greenstone3/flax;jsessionid=A5D0F211D421FAA839027E0FD9A38DFD?a=d&c=BAWESS&d=D17&dt=simple&p.a=b&p.s=ClassifierBrowse

38
Keane A, the modern law of evidence page 427

39
T. Buckes, R.Street and D.Brown, The Right of silence: The Impact of the
Criminal Justice and Public Order Act 1994 (London: Home Office, 2000) viii.

40
H.Fenwick, Civil Liberties and Human Rights (Oxon: Routledge-Cavendish, 4th
ed., 2007) 1239.

41
D. Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: OUP,
2nd ed.,2002) 388

42
Criminal justice and public order act 1994

43
T. Buck, R. Street and D. Brown, The Right of Silence: The Impact of the
Criminal justice and Public Order Act 1994 (London: Home Office, 2000)4

44
Criminal Justice Act 1987, s.2 (3)

45
D. Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: OUP,
2rd ed.,2002)395 

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