Right to silence

The right to silence is a legal protection given to people undergoing police interrogation or trial. The law is recognized, explicitly or by convention, in many of the world's legal systems.

The right covers a number of issues centered around the right to refuse to answer questions. This can be the right to avoid self-incrimination or the right to not answer any questions. The right usually includes the provision that adverse comment or inferences cannot be made by the judge or jury about the refusal to answer questions before or during a trial or hearing. The right extends from the moment of suspension of freedom of movement (usually arrest) to the end of the trial.

History

Neither the reasons nor the history behind the right to silence are entirely clear. The Latin maxim nemo tenetur se ipsum accusare ('no man is bound to accuse himself') became a rallying cry for religious and political dissidents who were prosecuted in the Star Chamber and High Commission of 16th century England. People coming before these tribunals were forced to swear the ex officio oath by which they swore to truthfully answer the questions to be put before them without knowing what they were being accused of. This created what has been termed the cruel trilemma whereby these accused faced the prospect of either perjury (which was believed to be a mortal sin), harsh punishment for contempt of court or betraying their "natural" duty of self-preservation. After the parliamentary revolutions of the late 1600s, according to some historical accounts, the right to silence became established in the law as a reaction of the people to the excesses of the royal inquisitions in these courts.

However the right to silence was not a practical reality in the English courts for centuries after that time. With no access to legal counsel, a shifting standard of proof and a system generally distrustful of silent defendants, a criminal accused who remained silent was committing figurative or literal suicide. Following the American Revolution and the enshrining of the right in the fifth amendment, the right became increasingly entrenched in common law legal systems across the world as other countries followed the rapidly developing jurisprudence in the US. The right to counsel, which also became increasingly entrenched following the American Revolution, gave defendants a practical method of mounting a defence while remaining silent and the development of the modern police force in the early 1800s opened up the question of pre-trial silence for the first time. The key American case of Bram v. United States paved the way for the right to be extended to pre-trial questioning and the practice of warnings became established in the US and elsewhere following the case of Miranda v. Arizona in 1966.

While initially alien to inquisitorial justice systems, the right spread across continental Europe, in some form, throughout the late 20th century due to developments in international law which saw an increasing universalisation of certain due process protections. As an example, the right is recognised in key international human rights documents such as the International Covenant on Civil and Political Rights.

Worldwide

Australia

Australia has no constitutional protection for the right to silence, but it is broadly recognised by State and Federal Crimes Acts and Codes and is regarded by the courts as an important common law right. In general, criminal suspects in Australia have the right to refuse to answer questions posed to them by police before trial and to refuse to give evidence at trial. As a general rule judges cannot direct juries to draw adverse inferences from a defendant's silence (Petty v R) but there are exceptions to this rule, most notably in cases which rely entirely on circumstantial evidence which it is only possible for the defendant to testify about (Weissensteiner v R). The right does not apply to corporations (EPA v Caltex).

There are numerous statutory abrogations of the right, particularly in the area of bankruptcy. There are also abrogations of the right in recent Federal anti-terrorism and Victorian organised crime Acts. Each of these acts set up coercive questioning regimes which operate outside the normal criminal processes. Direct testimonial evidence gained from this coercive questioning cannot be used in a subsequent criminal trial.

Canada

The right to silence is protected under section 7 and section 11(c) of the Canadian Charter of Rights and Freedoms. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involunatarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.

Although an accused has the right to remain silent and may not be compelled to testify against himself, where an accused freely chooses to take the witness stand and testify, there is no further right to silence and no general restriction on what kinds of questions they may be required to answer. This may be contrasted with the US right to refuse to answer incriminating questions under the 5th Amendment even while on the witness stand. However section 13 of the Canadian Charter of Rights and Freedoms guarantees that a witness may not have any incriminating evidence they gave as testimony used against them in separate proceedings. In effect, a person can be compelled to give involuntary self-incriminating evidence but only where that evidence is to be used against a third party.

In most cases, except for certain sex offences or where the victims are children, spouses can not be compelled to testify against each other.

A leading case on the right to silence was R. v. Hebert, which held that the accused cannot be tricked into divulging any information until they consult with a lawyer.

France

In France, the Code of Criminal Procedure (art. L116) makes it compulsory that when an investigating judge hears a suspect, he must warn him that he has the right to remain silent, to make a statement, or to answer questions. A person against which suspicions lay cannot legally be interrogated by justice as an ordinary witness.

At the actual trial, a defendant can be compelled to make a statement. However, the code also prohibits hearing a suspect under oath; thus, a suspect may say whatever he feels fit for his defense, without fear of sanction for perjury. This prohibition is extended to the suspect's spouse and members of his close family (this extension of the prohibition may be waived if both the prosecution and the defense counsel agree to the waiver).

Germany

According to § 136 Strafprozessordnung (StPO, i.e. Criminal Procedure Code) a suspect, arrested or not, has to be informed before any interrogation about his right to remain silent. It is not allowed to draw any interference from the complete silence of the accused in any stage of the criminal proceedings. However, it is allowed to draw conclusions if the accused remains silent only to certain questions about the same crime. Suspects cannot be heard under oath.

A person against which exist plausible causes of suspicion can be interrogated as an ordinary witness in criminal proceedings against another person. However, in this case according to § 55 StPO, the witness can refuse to answer questions which could incriminate himself (or one of his relatives). The suspicious witness also must be cautioned about his right to remain silent. Suspicious witnesses cannot be heard under oath.

United States

In the United States, the Fifth Amendment to the United States Constitution (part of the Bill of Rights) codifies the right to silence. The Supreme Court has ruled that suspects must be told of their rights in what have become known as Miranda warnings. Miranda warnings are not required to be given during the questioning of a suspect prior to actual arrest, for example during the execution of a search warrant.

However, if the state feels the need, a suspect or subpoenaed grand jury witness may be given a grant of immunity and compelled to give testimony under oath. This is not considered a weakening of the right, but rather a balancing of one individual's rights with the rights of others for a properly functioning justice system. The interplay of local, state, and federal law is also complicated in this area.

England and Wales

History

In England and Wales, the right of suspects to refuse to answer questions before their trial was not codified as Judges' Rules until 1912. Prior to 1912, while torture had been banned, the 'mistreatment' of silent suspects to induce a confession was common and the refusal to answer questions was used as evidence against them. 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.

The right to silence during actual trial was well established at common law, the defendant was "incompetent" to give evidence and attempts to force defendants to provide answers, such as the efforts of the Star Chamber were judged unlawful. Being unable to speak at their own trial, the practice of defendants giving an unsworn statement was introduced and was recognized in law in 1883. Defendants testifying in their own defence was also introduced in the 1880s (and extended to all offences by 1898) although the right to silence was clearly protected. As the right to testify was extended the possibility of unsworn statements was withdrawn.

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 their innocence - the burden of evidence rests on the prosecution.

However the right to silence "does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance." (Lord Mustill, R. v. Director of Serious Fraud Office, ex parte Smith (1992)). Lord Mustill identified six rights contained within the umbrella term:

1. A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
2. A general immunity... from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
3. A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
4. A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
5. A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
6. A specific immunity... possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.

There were a number of projects to modify the law, such as the 1972 Criminal Law Revision Committee. The committee recommended that inferences should be drawn from silence, but the committee report was strongly opposed. Certain changes were introduced in 1984, deriving from the Royal Commission on Criminal Procedure report of 1981, these introduced a right to have a legal representative during police interrogation and improved access to legal advice.

The right to silence during questioning and trial was changed substantially in the 1990s. The right had already been reduced for those accused of terrorist offences, or questioned by the Serious Fraud Office or the police of Northern Ireland, but in 1994 the Criminal Justice and Public Order Act modified the right to silence for any person under police questioning in England and Wales.

The new act was based on the 1972 Criminal Law Revision Committee report and the Criminal Evidence (Northern Ireland) Order (1988). It rejected the reports of the 1991 Royal Commission on Criminal Justice and the Working Group on the Right to Silence. The supporters of the proposed act argued that the existing law was being exploited by 'professional' criminals, while innocent people would rarely exercise their right. Changing the law would improve police investigations and adequate safeguards existed to prevent police abuse. Opponents claimed that innocent people may reasonably remain silent for many reasons, and that changing the law would introduce an element of compulsion and was in clear conflict with the existing core concepts of the presumption of innocence and the burden of proof.

Law at Present

Right to remain silence

A defendant in a criminal trial may choose whether or not to give evidence in the proceedings. Further, there is no general duty to assist the police with their inquiries.

Although certain financial and regulatory investigatory bodies have the power to require a person to answer questions and impose a penalty if a person refuses, if a person gives evidence in such proceedings, the prosecution cannot adduce such evidence in a criminal trial.

Adverse inferences from silence

At common law, adverse inferences could only be drawn from silence in limited circumstances where an accusation of guilt was made. It was a necessary that the accused be on even terms with the person making a charge and that it was reasonable to expect the accused to immediately answer the charge put to him (although it is not clear this rule applied where the accusation was made by or in the presence of police officers).

The Criminal Justice and Public Order Act 1994 provide statutory rules under which adverse inferences may be drawn from silence.

Adverse inferences may be drawn in certain circumstances where before or on being charged, the accused fails to:

• fails to mention any fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention;
• fails to give evidence at trial or answer any question;
• fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested; or
• fails to account on arrest for his presence at a place.

Where inferences may be drawn from silence, the court must direct the jury as to the limits to the interferences which may properly be drawn from silence. There may be no conviction based wholly on silence. Further it is questionable whether a conviction based mainly on silence would be compatible with the ECHR. If there has been a breach of the [Pace Codes of Practise|Police and Criminal Evidence Act 1984#PACE Codes of Practice], the evidence is more likely to be excluded under s. 78 of the Police and Criminal Evidence Act 1984. The Code envisages, amongst other things, recorded police interviews taking place at a police station, where the accused has access to legal advice and after the caution in the following terms has been given:

You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.

Facts later relied upon.

Adverse inferences may be drawn in certain circumstances where before or on being charged, the accused fails to mention a specfic fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention. If this failure occurs at an authorised place of detention (e.g. a police station), no inferences can be drawn from any failure occurring before the accused is allowed an opportunity to consult a legal advisor. Section 34 of the 1994 reverses the common law position that such failures could not be relied upon.

A person relies on a fact if he relies upon it in his own testimony or his counsel puts forward a positive case.

What it is reasonable for an accused to mention depends on all of the circumstances, including the accused's "age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice". If a defendant states that he remained silent on legal advice, the question for the jury is whether silence can only be attributed to the accused having no satisfactory answer to the charge against him.

The section is primarily directed at circumstances where a defendant refuses to reveal his defence until trial, ambushing the prosecution. An adverse inference is appropriate where the jury conclude that the reason the accused remained silent was that he had no proper answer to the charge put against him. The interferences that may be drawn include “some additional support” for the prosecution case, i.e. that the defendant is guilty.

Direction to the jury

In appropriate cases, the judge should direct the jury as to the proper limits of the inference of silence. TheJudicial Studies Board have provided a specimen direction, which has been accepted by the EctHR. Failure to give a valid direction, does not, however, render a conviction automatically unsafe.

European Convention on Human Rights

The concept of right to silence is not specifically mentioned in the European Convention on Human Rights but the European Court of Human Rights has held that,

the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.

See also

• Perjury
• Spousal privilege
• Taking the Fifth
• Nemo tenetur se detegere

Further Reading

Hooper, Ormerod, Murphy; et al. (eds.). "Section F19 Inferences from Silence and the Non-production of Evidence". Blackstone's Criminal Practice (2008 ed.). Oxford. ISBN 978-0-19-922814-0. {{cite book}}: Explicit use of et al. in: |editor= (help)CS1 maint: multiple names: editors list (link)

External links

• Silence: The Ultimate Protector of Individual Rights by Carl Watner