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Published: Fri, 02 Feb 2018
What Is The Right To Silence
Tortures and forced confessions in interrogating suspects were well known to happen in most nations. Public authorities, such as the police had used this kind of method of interrogation in investigating suspects and forcing the suspects to expose the evidence and information which are vital to them. It is well known that any uncontrolled power or prerogatives would lead to abuse and this is true with some powers which are exercised by the public authorities. In accordance to this, the right to silence or right to remain silent emerged to protect the rights of suspects. Since the existence of the right to silence, suspects acquired the right to remain silent in an interrogation and in trial. Exposure of information are up to the defendant, he may or may not say anything during trial. Unfortunately, this right is countered by Criminal Justice and Public Order Act 1994 (CJPOA). To what extent CJPOA has reduced the right to silence? What is actually the right to silence? Does this right still used by defendants and how much the defendant knows about it? What are the effects of using this right in United Kingdom (UK)? In order to answer all these questions, the history of the right to silence should be studied and the current position of this right in the common law of UK is up to be analysed.
The right to silence has been in existence in England since 16th century. During that time, police constables were used to interrogate as soon after the detention of suspects. 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 v The Queen  . This right evolved from distrusts shown by the judiciary itself. In the beginning of 19th century, the judges started to oppose distrust on confessions which were conducted by the authorities as they were not properly monitored and organised. The right to silence evolved as an answer to this matter which was started by the judiciary. 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. This is 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 Voisin  . If the police fail to follow this rule, the judge will have the discretion to exclude any evidence in the trial. 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 1984. The Evidence Act of New South Wales is also an Act which corresponds to the right in particular to Wales. These Acts gave a significant effect in the law of England and Wales.
The right to silence in Northern Ireland was as in England and Wales too. The Criminal Evidence (Northern Ireland) Order 1988 was the starting point and an Act used as like a test. Although the Act covers legislation in all over areas of the British government but it was specifically targeted at Northern Ireland at first. In this newly enacted law, a judge can draw an adverse inference from suspects who did not disclose any information and chose to be silent during the trial. This Act and the report of Criminal Law Committee  act like a base used to create The Criminal Justice and Public Order Act 1994. The suggestions proposed under both of these were taken into account and incorporated in the new Act. The 1994 Act stands as it is until today. What are exactly the rights to silence? As in R v Director of the Serious Fraud Office  , there are some fundamental immunities available to a suspect. These were, it is not an offence to refuse answering questions, it is not an offence to not to reply questions which are self-incriminating, a suspect will not commit an offense if he did not answer questions asked by the police, a suspect should not be forced to testify throughout the trial, no more questions shall be asked if the police has already charged the suspect and adverse interferences should be drawn from the failure of the defendant to answer questions. These general immunities operate and are available to any suspects. Over time, problems arise as some guilty suspects were known to escape from the law by abusing the right.
Article 6 of the European Convention on Human Rights deals with the right to be silent, but it is not specifically mentioned in it. However, The notion of right of fair trial under article 6 is the corresponding article in the ECHR with the right to silence. The ECHR was incorporated into English law by the Human Rights Act 1998. In return, this made the United Kingdom to oblige any laws or rules under the ECHR. HRA guarantees the citizens of UK of the rights provided by the ECHR. It also provides a solution for defendants without the need to go to the European Court of Human Rights. Alternatively, cases can be decided in UK without the involvement of the European Court. The decision of ECHR Court in Condron v UK  is related with right to silence. Here, a couple of husband and wife were accused of supplying heroin. They were arrested but at the moment of questioning by police, they were intoxicated with heroin. Their solicitor considered them not fit to answer questions and advised them to do so. The trial judge directed the juries under s.34 of CJPOA 1994 to draw adverse inference on their refusal. In the ECHR, the decision was ruled against the UK as the applicant’s right of fair trial were denied. The decision in this case proved that the ECHR clearly protects the rights of fair trial but the right to silence is not obviously discussed in the judgement. A landmark case which really depicts the issue of right to silence is Murray v UK  . John Murray was a member of Provisional Republican Army (IRA) and was arrested with terrorism offences of murder of a police informer under the Prevention of Terrorism (Temporary Provisions) Act (1989). Throughout the proceedings he remained silent despite of continuous warning and was convicted of abetting murder by the trial judge. In ECHR, he claimed the denial of any legal assistance and adverse inferences drawn were in breach of Article 6 of the Convention. ECtHr 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. Another recent case is 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. The European Court rejected this appeal and was in favour of UK approving the Government has its right to force motorists to self-incriminate. The verdict may be correct as it would cause a dangerous precedent if it was decided differently. A conclusion which can be drawn from these cases is that the Convention does not give an absolute power of right to silence but it is given in regards to the situation. However, the ECtHR still holds its’ provision under Article 6 of the Convention in the case of Saunders v UK  as there was a clear evidence of involuntary self-incrimination.
THE OBVIOUS REASONS
The curtailment of the right to silence is closely related to new counter terrorism legislations. The newly enacted Counter Terrorism Act (2008) obviously strengthened police powers and curtailed some rights which are related to freedom. The Act allows the police to conduct post-charge questioning if necessary which is prohibited before. Although the provisions in the Act may seem harsh but it may be necessary to charge highly suspected terrorists without giving them much room to escape. Proponents of the Acts argued that many professional offenders and terrorists escaped from the law by abusing the rights. In a study conducted by the Metropolitan Police in 1987, over 23% who had been interviewed used their rights in some way. However, only 12.3% of interviewees were recorded using their rights under a research conducted by the Home Office in the same year.  It is important to consider these studies but excessive weight should not be put into this as it involves with police interrogations. Much have to be studied with this type of interrogation as it plays with the suspect’s mind. Police interrogation is a very powerful psychological tool used to deal with suspects and conducted by highly trained police officers. Although it is usually used successfully to charge a suspect, certain flaws still exist in the system. One highly controversial case was Miranda v. Arizona (US)  . Here, the defendant was charged with rape after he voluntarily waived his right to remain silent during the interrogation. It is proven that the defendant did not understand those rights which made the court in favour of him. Further example which can be related is the case of Earl Washington, Jr.  This man was convicted of a rape and murder which he did not commit and was released 18 years after. These are some of the cases which has resulted failure in the interrogation system.
Often when a question or an interrogation session is over, questions arise whether the session was conducted in a manner respecting the suspect’s right without any violence or coerciveness. However the real problem is it possible to conduct an interrogation without violating the suspect’s rights? Realistically, the right to silence has a low value and not really exercised by most suspects. Only suspect who knows the law and the right well would exercise the right as most people would not be able to withstand the mental pressures during the interrogation. False evidences, lies, isolation and many other psychological tactics are practiced to make the suspect confess the crime. As a result of this, many false confessions happen due to unbearable psychological pressures. This is what happened in the case of Michael Crowe  , where a 14 year old boy who was presumed guilty by the police killing his younger sister. Later after disputes and suspicions arose, the police made further investigation and finally found out the real killer was another man. The boy confessed to a crime that he did not do after long hours of mental torture. The problem with police interrogation is that the usage of excessive psychological methods and all suspects are presumed to be the same without considering their own personality. However, as discussed earlier, it is quite impossible to not violate suspects’ rights in interrogations as other methods of questioning should be developed.
In general it seems that certain offences really requires some amount of right to silence while others are arguably needed. The Regulation of Investigatory Act (2000) makes it is an offence not to handle a key when requested by the authorities to open protected information. It may be argued that it violates the civil liberties of a person but if it used in a way that it was intended, and then it shall produce good results.
DIFFERENT OPINIONS, PROBLEMS AND SOLUTIONS
Currently, the right to silence in UK has been curtailed to the point of adverse inferences are drawn. Studies by the Association of Chief Police Officers (ACPO) show that suspects are more likely to exercise their right to silence if they have done serious offence. Otherwise, a suspect who never has been charged before are not likely to use it and are actually practiced by some experienced criminals. This particular right, as argued by ACPO, provides a better protection for them and as a route of escape from convictions.  On the other hand, some scholars argue that suspects who had committed crimes before are more likely to use the right is because they already known the system and they are prone to commit other future offence. Thus, the reasoning by ACPO cannot be used to represent layperson.  Furthermore, the accessibility and knowledge of this right are broader in recent years compared to before. So, the gap of awareness between professional criminals and layperson are rather small. Ambush defence is not that serious as it was reported and it only happens in a very small percentage. By considering these facts, it can be said that the right to silence usage has been widespread and does not necessarily reflects the professional criminals.
Statistically the usage of the right does not really provide any clear advantage to the defendant but instead does more harm to them. Among the conclusions made by Professor Michael Zander is that this right gives more strength for the prosecution. Next, when a suspect exercise his right in the police station, he is more likely to be charged. Majority of the defendant pleaded guilty in the court where at first, they’ve chosen to remain silent at police stations.  In addition, police are very interested and more likely to be suspicious with suspects who exercise their but this may not be wholly true because some defendants are really innocent.
Some agree that the right to silence should be retained as it depicts the symbolic value of fundamental freedom and civil liberties of a person. Without this right, authorities would gain too much power and leading to no autonomies. The right helps the prosecution not to convict a wrong suspect and demands further investigations. By retaining this right, it would warn the authorities to be more careful when charging suspects. Moreover, suspects who are silent in the pre-trial are presumed to be guilty. There is no any clear evidence which shows silence corresponds to guilt and even if there are, it is not consistent. Some suspects who have exercised their right to silence believe it is the best to remain silent. They don’t really care about the advantages of using this as their sole purpose is to avoid further complications and stress. If this right is totally abolished, then it is more likely to convict the wrong person because they’ll be compelled to say anything they know. When under stress, a person may tell the wrong facts and may eventually lead to a big error in the case. Furthermore, without this right it would be easier for the prosecution to carry the burden of proof because they may rely on defendant’s part of silence as a sign of guilt.
The current law on the right to silence is an acceptable measure as it protects both the right and justice. It protects the suspects with giving a limited but still enough right and at the same still imposes its own cautions. However, small modifications might help in favour of suspects. The caution given in pre-trial stages should be made really clear and explained to the suspect. During the process, suspect must be warned from time to time that his refusal to answer questions may result in adverse inference by the court. Suspects must also be made clear with the fact that his silence will not cause him to be charged and used against him. They must also inform that suspect could not rely on a defence that he would reasonably expected to say during interrogation later in that case. Legal advice must be provided for suspects who wish to attain them when under questioning. However, all these suggestion only applies before the case goes to the court. It is always expected for suspect that he would defend himself to prove he is not guilty and if he refused to say anything at this point, then adverse inference may be drawn. This is due to the fact that numerous warnings given before the trial and a defendant refusing this clearly play with the law. Nevertheless, judgement or prosecution should not be based on his refusal to answer but rather on the facts and his involvement in the case. When adverse inference is drawn, the court shall decide the case objectively and without any defence from the defendant as it is what he chooses to.
The right to silence is still a necessary right of a layperson and it should be retained as it is now and further curtailments would bring more harm than good to civil liberties.
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