Code C of the Police And Criminal Evidence Act 1984[1] provides that a person, who is reasonably suspected of an offence must be cautioned before any questions of the offence is put to him. Additionally, it provides that their answers or their silence may be given to a court in prosecution[2]. By law, suspects are allowed to remain silent upon being questioned, and this right is deemed to be a cornerstone of the notion of fairness in the Criminal Justice System in the United Kingdom[3]. However, while such a right is enshrined by the values of Article 6 of the European Convention of Human Rights[4], it is not necessarily seen as an absolute right[5]. The recent years have seen a decline of such rights[6]. The balancing act of this right, is done against the values of the due process and crime control models of criminal justice[7]. The values under the ‘due process’ model suggests that it should be up to the prosecution to find its own evidence in an adversarial trial system. On the other hand, the ‘crime control’ model suggests that only the guilty have something to hide and that the innocent can only benefit from helping the crown[8]. This essay will go on to assess the advantages and disadvantages of the right to silence, by analysing its use in context and by weighing the two models of criminal justice against each other.
A catalyst for the erosion of the right to silence was the enactment of the Criminal Justice and Public Order Act 1994[9]. The Act suggest that individuals who rely, for their defence, upon a fact, that they did not provide to the police when charged and cautioned, will allow for their silence during their interview to be adversely inferred by the Courts[10]. Similarly, failing to testify at court[11], failing to provide explanations for incriminating marks or objects[12] or failing to provide explanation for their presence near the scene of crimes[13], can lead to such adverse inferences being drawn. Nevertheless, it is still believed by some that if there is no compulsion to answer, that the right is protected[14]. Furthermore, it must be noted that the CJPO disallows convictions simply on the basis of adverse inferences from silence[15]. It was made clear by the courts that a jury must be directed that they could only attribute silence to the accused’s guilt only if it was sensible to do so[16].
Even while there is a plethora of safeguards under the Act and keeping in mind that the Court is always there to help juries in whatever way necessary, it remains important to recognise that juries and fact-finders, as a sociological problem, have always managed to hold an accused’s silence against him[17]. Historically, there seems to be a judicial hostility towards the right of silence. The House of Lords has even held the view that it is more likely that an innocent man would answer police questions[18].
Upon an arrest, it is usually the case that a suspect is questioned. By law, the police are allowed to hold a suspect in custody until they speak, barring certain limits under PACE-1984. Coupled with the fact that being held over-night in custody is usually a suspect’s biggest fear[19], this often pushes the suspect into cooperating with the police, even at the risk of self-incrimination[20], a right that the European Courts have upheld and defended[21]. Furthermore, it was also held that the prosecution would be able to build a case against the defence without resorting to coercive means[22]. This position was deemed to be very important and it was held that such were the derivations from Article 6[23]. The argument here, is that such an ignorance of the individual’s right to silence tramples on some of their basic rights during trials. This betrays the fundamentals of a fair CJS and has the potential to be abused in the future as a means of a cultural force of habit.
One major argument in favour of the right of silence is that it allows for a balance between the awesome power of the state and that of the accused. By holding on to their right of silence, it was though that a defendant would be able to reserve his or her defence until after the prosecution had made out a prima facie case against them. This supports the presumption of innocence, another cornerstone of the British CJS[24]. Given the fact that the prosecution are not expected to reveal their evidence against the accused before trial, the Right of Silence upholds the defence’s privilege against self-incrimination as argued above[25].
As it stands, such ideas were heavily undermined by new statutory obligations on the defence to produce outlines of their case or risk adverse inference[26]. However, vague outlines were of little use to prosecution[27]. Furthermore, the defence is now expected to not only comply with this regulation, but also provide statements regarding the general nature of defence, indicate points of law that they intend to rely on and provide details of alibi witnesses[28]. Additionally, the defence is expected to provide notice of additional witnesses[29]. Failure to comply in these cases, allows for adverse inference[30]. These duties are imposed with a view of allowing prosecutors to prepare a case against the defence[31]. This further establishes the power of the state against the defence, by means of limiting their right to silence. Given the difference in power between the two, coupled with the presumption of innocence, this furthers the case for the right to silence for the defence[32].
In light of the argument made above, it is possible to argue that section 34 of CJPO case law is problematic, because lack of disclosure undermines the inference from silence. The reason being that inference usually depends on the assumption that the innocent will reveal their defences to the police at interview for the sake of self-preservation. As shown above, it is believed that the innocent has nothing to hide. However, it is equally true, if an innocent suspect thinks that the evidence against him is weak, he may think that he will soon be released anyway, even if he does not put forward a defence[33]. In Beckles[34], if the defence had admitted to being present at the scene of crime he would have potentially incriminated himself in relation to false imprisonment. The argument in favour of the Right to Silence in such cases is that there is a risk of bolstering a prosecution, which otherwise could not have been able to move forward[35]. While the caution does warn of the risk of an adverse inference from the Silence[36], there is still a chance that defence might believe that with a lack of evidence, the prosecution might never go through. Again, it is important to remember that there always needs to be a balance between the two models of CJS, and thus between the powers of the prosecution who has the enormous power of the state behind them, against the powers of the defence, who in most cases, must rely on their own abilities or that of the legal advisors that they have access to.
In line with what has been argued above, it seems probable that generally defence counsel will usually ask their clients to remain silent until the police disclose information regarding the case. It was found through research that this was indeed the case and was done out of a fear of self-incrimination[37]. Legal counsel in these cases often assert that without the police having disclosed some information about the case, it was unreasonable for their clients to answer questions[38]. Because the law demands that adverse inference can only be drawn where the defence could reasonably have been expected to answer[39], this proves to be an effective strategy in ensuring that the police at least disclose some information[40]. Even if this is at the discretion of the police[41].
In Argent[42], the solicitor had advised silence as a result of the lack of cooperation from the police. The Court of Appeals in this case, held that legal advice in this case was not relevant due to client confidentiality. It was held that the true test per CJPO-1994 was whether it was reasonable for the suspect to have disclosed the fact that he later relied on in trial. Additionally, it was held that police failure to disclose specific details was dependent on what might have been necessary to deem the suspect’s behaviour as unreasonable. This view was well accepted[43].
This makes it difficult for lawyers to advice clients and for clients to follow whatever advice is given to them regarding the matter[44]. To convince the courts of their reasonableness in relying on their lawyers, it then becomes a necessity for suspects to disclose what they had discussed with their counsel[45], which might be well against their interests[46]. The Court of Appeals has continued to affirm such positions and allowed adverse inference in cases where the accused have remained silent on the basis of the legal advice they had received, unless the jury was lead to believe that the defendant had a genuine reason to rely on the advice of their counsel entirely[47]. It is important to recognise that this contradicts the position of the European Court of Human Rights in the decision in Condron[48]. This shows that the English CJS is predisposed against the Right to Silence, and that the exercise of this right may prove to be a bad strategy on part of the defence[49]. The view of the court was that the mere advice of counsel was not sufficient reason for an individual to assume that this was reasonable[50]. The lack of clarity on the stance of the courts and the innate idea that judges and juries might take different views of the Right to Silence being exercised[51]. It is thus evident that lawyers and their clients will often have a difficult time assessing which route to take, and even where advice to remain silent is given, lawyers are now more prone to give advice to their clients regarding the reasonableness of relying on the advice itself[52].
This stance against the Right of Silence suggests a number of problems. First, it weakens the abilities of lawyers and clients to function within their dynamics by infringing on the ability of honest and genuine legal advice being given and received[53]. Second, it undermines public interest in protecting the dignity and privacy of individual suspects who are paired against the awesome power of the state and need protection. Finally, it damages the presumption of innocence, by making it imperative for the defence to speak up in order to validate their position. It is evident that the Courts support the rationale of CJPO-1994 of ‘flushing out innocence at an early stage or supporting other evidence of guilt at a later stage’[54]. The Court’s stance in this case is heavily geared towards the crime control model[55].
In line with what we have seen above, it is evident that Courts have now resorted to allowing adverse inferences from silence to fill the gaps in the prosecution case[56]. Nevertheless, it is argued that this relies on the Court’s interpretation of CJPO-1994, however, it seems to always tilt in favour of prosecution[57].
Silence is now more frequently used in serious cases[1]. In addition to this, research suggests that in only a small number of non-prosecuted cases and acquittals, the Right of Silence is exercised, and that the outcome is not linked to the right either[2]. The fact that so few successful defences are because of the Right to Silence being exercised, it is safe to presume that the existence of such aright would not exponentially change conviction rates. Research shows that while the number of people who answer questions during interviews has risen[3], the number of people subsequently charged has slightly fallen[4].
The Phillips Commission[5] was in favour of the Right of Silence[6]. However, the Courts took the opposite stance after noticing a fall in conviction rates[7]. The Runciman Commission[8] mostly agreed with the Phillips Commission in stating that adverse inference from silence puts a strong mental burden on certain suspects and thus making them more likely to make incriminating statements against themselves and potentially sending innocent people to jail while leaving hardened criminals unaffected and thus not changing their conviction rates[9]. This does nothing in favour of the innocent and only makes the CJS more difficult to manoeuvre around. Regardless of these recommendations and obvious problems, the CJPO-1994 was till enacted.
The decline of the Right of Silence offends against the freedom principle[10]. With very little to gain at the cost of significant threats to the defendants and defence counsel at trials, the measures of such provisions of law seem oddly disproportionate to the results that it achieves[11]. Concerns regarding the provisions have been raised by multiple commentators[12] and even the Court of Appeals[13], despite their inclination toward sticking to the letter of law when it comes to section 34[14]. The Court rightly points out that the erosion of the Right of Silence by means of CJPO-1994 has led to the promotion of the adverse inference to a gravely damaging extent[15]. It gravely entrenches on the principles of the CJS and its repeal has been argued by academicians[16].
As argued above and as seen through the analysis of case law, the protection of the presumption of innocence is imperative. The decline of the Right to Silence is an obvious threat to that, as it not only pits weak defendants against the might of the state, it also limits their ability to gain meaningful counsel on the matter. Furthermore, with no real benefit being seen from this decline, it almost seems unnecessary. Protection of fair trials is what should be prioritised at all times in a CJS and the Right to Silence is imperative to that. The use of Silence as a form of evidence, is deeply disturbing[17].
Bibliography
- Table of Cases
- Condron Vs UK (2001) 31 EHRR 1
- Funke Vs France (1993) 16 EHRR 297
- Higgins (2003) EWCA 2943
- Hoare and Pierce (2004) EWCA Crim 784
- Murray Vs UK [1996] 22 EHRR 29
- R Vs Alladice (1988) 87 Cr App Rep 380
- R Vs Argent (1997) 2 Cr App Rep 27
- R Vs Beckles (2004) EWCA Crim 2766
- R Vs Bresa (2005) EWCA Crim 1414
- R Vs Cowan (1996) QB 373
- R Vs Howell (2003) Crim LR 405
- R Vs Knight (2004) Cr App R 9
- R Vs Lisa Loizu (2006) EWCA Crim 1719
- R Vs Roble (1997) Crim Lr 499
- R Vs W [2006] EWCA (Crim) 1292
- R Vs Webber [2004] UKHL 1
- R Vs. Beckles [2005] 1 W.L.R. 2829
- Saunders Vs UK (1996) 23 EHRR 313
- T Vs DPP (2007) EWHC 1793 (Admin)
- Taylor [1971] 2 WLR 1047
- Statutes:
- Criminal Justice Act 2003
- Criminal Justice and Public Order Act 1994
- Police and Criminal Evidence Act 1984
- Codes of Practice:
- Police and Criminal Evidence Act 1984, Code C
- Conventions
- European Convention of Human Rights
- Text Books:
- Andrew L-T Choo, Evidence (4th Edition) (Oxford)
- Blackstone’s Guide to the Criminal Justice Act 2003 (Oxford University Press) (2004)
- I. H. DENNIS, THE LAW OF EVIDENCE (3rd Edition) (2007)
- Sanders A, Young R, Burton M, Criminal Justice (4th Edition) (Oxford)
- Reports and Journals:
- Cape E, Defending Suspects at Police Stations, 5th Edition (London: LAG 2006c)
- Cooper S, ‘Legal Advice and Pre-trial Silence – Unreasonable Developments’ (2006) 10 IJ E&P 60
- D Birch, ‘Suffering in Silence: A Cost-benefit Analysis of Section 34 of the Criminal Justice and Public Order Act 1994’ (1999) Criminal Law Review 769
- Easton S, The Case for the Right to Silence (Aldershot: Ashgate, 1998)
- Leng R, The Right to Silence in the Police Interrogation (RCCJ Research Study No. 10) (London: HMSO, 1993)
- McConville M and Hodgson J, Custodial Legal Advice and the Rights to Silence (Royal Commission on Criminal Justice Research Study No. 16) (London: HMSO, 1993)
- Moston S and Williamson T, ‘The Extent of Silence in Police Interviews’ In Geer S and Morgan R (eds), The Right to Silence Debate (Bristol: University of Bristol, 1990)
- Pattenden R, ‘Inferences from Silence’ (1995) Crim LR 602
- Pattenden R, ‘Silence, Lord Taylor’s Legacy’ (1998) 2 IJ E&P 141
- Quinn K and Jackson J, ‘Of rights and Roles: Police Interviews with Young Suspects in Northern Ireland’ (2007) 47 BJ Crim 234
Cape E, ‘Sidelining Defence Lawyers: Police Station Advice After Condron’ (1997) 1 IJ E&P 386
- Quoted by, Geer S, ‘The Right to Silence: A Review of the Current Debate’ (1990) 53 MLR 719
- Redmayne M, English Warnings, Cardozo Law Review, [vol 30:3]
- Royal Commission on Criminal Justice (RCCJ), Report (Cm 2263) (London: HMSO, 1993)
- Sanders A and Bridges L, Access to Legal Advice and Police Malpractice (1990) Crim LR 494
- T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000)
- T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000)
- T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000)
- The Royal Commission on Criminal Procedure Report (1981)
[1] Moston S and Williamson T, ‘The Extent of Silence in Police Interviews’ In Geer S and Morgan R (eds), The Right to Silence Debate (Bristol: University of Bristol, 1990), p 38.
[2] Leng R, The Right to Silence in the Police Interrogation (RCCJ Research Study No. 10) (London: HMSO, 1993)
[3] T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000), 31
[4] T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000), 40-41
[5] The Royal Commission on Criminal Procedure (Phillips Commission)
[6] The Royal Commission on Criminal Procedure Report (1981), p 80-91
[7] R Vs Alladice (1988) 87 Cr App Rep 380
[8] Royal Commission on Criminal Justice (Runciman Commission)
[9] Royal Commission on Criminal Justice (RCCJ), Report (Cm 2263) (London: HMSO, 1993), p 55
[10] Sanders A, Young R, Burton M, Criminal Justice (4th Edition) (Oxford) p 272
[11] Andrew L-T Choo, Evidence (4th Edition) (Oxford), p 144
[12] D Birch, ‘Suffering in Silence: A Cost-benefit Analysis of Section 34 of the Criminal Justice and Public Order Act 1994’ (1999) Criminal Law Review 769
[13] R Vs Bresa (2005) EWCA Crim 1414
[14] Criminal Justice and Public Order Act 1994, s.34
[15] R Vs Bresa (2005) EWCA Crim 1414 at [4]
[16] I. H. DENNIS, THE LAW OF EVIDENCE (3rd Edition) (2007), p 206
[17] Redmayne M, English Warnings, Cardozo Law Review, [vol 30:3]
[1] Henceforth known as PACE-1984
[2] Police and Criminal Evidence Act 1984, Code of Practice C, para 10.1
[3] Murray v UK [1996] 22 EHRR 29
[4] European Convention of Human Rights, art 6
[5] Condron Vs UK (2001) 31 EHRR 1
[6] Easton S, The Case for the Right to Silence (Aldershot: Ashgate, 1998) ch 1.
[7] Sanders A, Young R, Burton M, Criminal Justice (4th Edition) (Oxford) p 260
[8] Quoted by, Geer S, ‘The Right to Silence: A Review of the Current Debate’ (1990) 53 MLR 719
[9] Henceforth known as CJPO-1994
[10] Criminal Justice and Public Order Act 1994, s.34
[11] Criminal Justice and Public Order Act 1994, s.35
[12] Criminal Justice and Public Order Act 1994, s.36
[13] Criminal Justice and Public Order Act 1994, s.37
[14] R Vs Cowan (1996) QB 373, per Lord Chief Justice
[15] Criminal Justice and Public Order Act 1994, s.38
[16] Condron Vs UK (2001) 31 EHRR 1
[17] Sanders A, Young R, Burton M, Criminal Justice (4th Edition) (Oxford) p 263
[18] R Vs Webber [2004] UKHL 1
[19] Sanders A and Bridges L, Access to Legal Advice and Police Malpractice (1990) Crim LR 494
[20] Andrew L-T Choo, Evidence (4th Edition) (Oxford), p 145-152
[21] Funke Vs France (1993) 16 EHRR 297
[22] Saunders Vs UK (1996) 23 EHRR 313
[23] European Convention of Human Rights, art 6
[24] Sanders A, Young R, Burton M, Criminal Justice (4th Edition) (Oxford) p 265
[25] R v. W [2006] EWCA (Crim) 1292, [8]
[26] Criminal Procedure and Investigations Act, s.5
[27] Taylor [1971] 2 WLR 1047; Taylor et al, Blackstone’s Guide to the Criminal Justice Act 2003 (Oxford University Press) (2004), p 40
[28] Criminal Justice Act 2003, s.33
[29] Criminal Justice Act 2003, s.34
[30] Criminal Justice Act 2003, s.39
[31] Sanders A, Young R, Burton M, Criminal Justice (4th Edition) (Oxford) p 266
[32] Higgins (2003) EWCA 2943
[33] Redmayne M, English Warnings, Cardozo Law Review, [vol 30:3]
[34] R v. Beckles [2005] 1 W.L.R. 2829
[35] ED CAPE, DEFENDING SUSPECTS AT POLICE STATIONS 201-02, 217-18 (2006)
[36] Police and Criminal Evidence Act 1984, Code of Practice C, para 10.
[37] McConville M and Hodgson J, Custodial Legal Advice and the Rights to Silence (Royal Commission on Criminal Justice Research Study No. 16) (London: HMSO, 1993)
[38] T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000), 23
[39] Criminal Justice and Public Order Act 1994, s.34
[40] Sanders A, Young R, Burton M, Criminal Justice (4th Edition) (Oxford) p 268
[41] Quinn K and Jackson J, ‘Of rights and Roles: Police Interviews with Young Suspects in Northern Ireland’ (2007) 47 BJ Crim 234
[42] R Vs Argent (1997) 2 Cr App Rep 27
[43] R Vs Roble (1997) Crim Lr 499
[44] Cape E, ‘Sidelining Defence Lawyers: Police Station Advice After Condron’ (1997) 1 IJ E&P 386, p 398
[45] T Vs DPP (2007) EWHC 1793 (Admin)
[46] R Vs Lisa Loizu (2006) EWCA Crim 1719
[47] R Vs Beckles (2004) EWCA Crim 2766
[48] Condron Vs UK (2001) 31 EHRR 1
[49] R Vs Howell (2003) Crim LR 405
[50] R Vs Knight (2004) Cr App R 9
[51] Sanders A, Young R, Burton M, Criminal Justice (4th Edition) (Oxford) p 270
[52] Cape E, Defending Suspects at Police Stations, 5th Edition (London: LAG 2006c)
[53] Cooper S, ‘Legal Advice and Pre-trial Silence – Unreasonable Developments’ (2006) 10 IJ E&P 60
[54] Hoare and Pierce (2004) EWCA Crim 784
[55] Sanders A, Young R, Burton M, Criminal Justice (4th Edition) (Oxford) p 270
[56] Pattenden R, ‘Inferences from Silence’ (1995) Crim LR 602, p 607
[57] Pattenden R, ‘Silence, Lord Taylor’s Legacy’ (1998) 2 IJ E&P 141, p 164
[58] Moston S and Williamson T, ‘The Extent of Silence in Police Interviews’ In Geer S and Morgan R (eds), The Right to Silence Debate (Bristol: University of Bristol, 1990), p 38.
[59] Leng R, The Right to Silence in the Police Interrogation (RCCJ Research Study No. 10) (London: HMSO, 1993)
[60] T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000), 31
[61] T Bucke, R Street and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office Research Study 199) (2000), 40-41
[62] The Royal Commission on Criminal Procedure (Phillips Commission)
ABOUT THE AUTHOR
Ahmed Shafquat Hassan is currently working at the Centre for Peace and Justice as a Research Assistant. His primary focus is on constitutional law and human rights protection. He was called to the bar of England and Wales in 2018 by the Honourable Society of the Inner Temple and has spent a year as a pupil barrister, working with Probir Neogi and Associates. He is an accredited Civil and Commercial Mediator with ADR-ODR International.
