Right to silence in England and Wales
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The right to silence in England and Wales is the protection given to a person during
criminal proceedings Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or i ...
from adverse consequences of remaining silent. It is sometimes referred to as the privilege against
self-incrimination In criminal law, self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another ersonin a criminal prosecution or the danger thereof". (Self-incrimination ...
. It is used on any occasion when it is considered the person being spoken to is under suspicion of having committed one or more criminal offences and consequently thus potentially being subject to criminal proceedings.


History

In
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
, the right of suspects to refuse to answer questions during their actual trial (the "right to silence", or the
right to remain silent The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the worl ...
as it is now known) was well established at
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
from the 17th century. The defendant was considered "incompetent" to give evidence and attempts to force defendants to provide answers, such as the efforts of the
Star Chamber The Star Chamber (Latin: ''Camera stellata'') was an English court that sat at the royal Palace of Westminster, from the late to the mid-17th century (c. 1641), and was composed of Privy Counsellors and common-law judges, to supplement the judic ...
, were judged unlawful. Being unable to speak at their own trial, the practice of defendants giving an unsworn statement was introduced and was recognised 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. However the right of suspects to refuse to answer questions ''before'' trial was not codified as
Judges' Rules The Judges' Rules are a set of guidelines about police and questioning and the acceptability of the resulting statements and confessions as evidence in court. Originally prepared for police in England, the Rules and their successor documents ha ...
until 1912. Prior to 1912, while
torture Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogation for information, or intimidating third parties. Some definitions are restricted to acts c ...
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. 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, during his trial for murder, Dr
John Bodkin Adams John Bodkin Adams (21 January 18994 July 1983) was an Irish-born British general practitioner, convicted fraudster, and suspected serial killer. Between 1946 and 1956, 163 of his patients died while in comas, which was deemed to be worthy of i ...
decided, on the advice of his lawyer, not to give evidence, the prosecution, the gallery and even the judge, Baron Devlin, were surprised. In the view of
Melford Stevenson Sir Aubrey Melford Steed Stevenson (17 October 1902 – 26 December 1987), usually known as Sir Melford Stevenson, was an English barrister and, later, a High Court judge, whose judicial career was marked by his controversial conduct and ...
, 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."Hallworth, Rodney and Mark Williams, ''Where there's a will... The sensational life of Dr John Bodkin Adams'', Capstan Press, Jersey, 1983. Pages 232–233 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. However 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". Lord Mustill identified six rights contained within the umbrella term: 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 with the
Police and Criminal Evidence Act 1984 The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise ...
(commonly known as PACE), 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
Royal Ulster Constabulary The Royal Ulster Constabulary (RUC) was the police force in Northern Ireland from 1922 to 2001. It was founded on 1 June 1922 as a successor to the Royal Irish Constabulary (RIC)Richard Doherty, ''The Thin Green Line – The History of the Royal ...
, 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 England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
. Before the Act, the caution issued by the police varied from force to force, but was along the lines of: This is similar to the right to silence clause in the
Miranda Warning In the United States, the ''Miranda'' warning is a type of notification customarily given by police to criminal suspects in police custody (or in a custodial interrogation) advising them of their right to silence and, in effect, protection fr ...
in the US. PACE Code C, one of the codes of practice issued under PACE, was modified to specify a uniform wording for the caution, namely: In some circumstances, particularly if a suspect has requested legal advice but has not been allowed the opportunity to consult a solicitor, no adverse inferences may be drawn; in this scenario, the appropriate caution is amended to omit this possibility: Equivalent cautions are specified in
Welsh Welsh may refer to: Related to Wales * Welsh, referring or related to Wales * Welsh language, a Brittonic Celtic language spoken in Wales * Welsh people People * Welsh (surname) * Sometimes used as a synonym for the ancient Britons (Celtic peop ...
. The 1994 Act, in addition to the amended codes of practice, 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.


Right to remain silent

A defendant in a criminal trial has no obligation to answer any questions, but may choose whether or not to give evidence in the proceedings. Furthermore, there is no obligation to assist the police with their investigation. 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 use such evidence in a criminal trial.


Adverse inferences from silence

At common law, adverse inferences could be drawn from silence only in limited circumstances in which an accusation of guilt was made. It was necessary that the accused be on even terms with the person making a charge and that it was reasonable to expect the accused to answer immediately the charge put to him (although it was not clear if the rule applied where the accusation was made by or in the presence of police officers). The
Criminal Justice and Public Order Act 1994 The Criminal Justice and Public Order Act 1994 (c.33) is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the law, most notably in the restriction and reduction of existing rights, clamping down on unlicensed ...
provides 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 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 inferences 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
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
. If there has been a breach of the PACE Codes of Practice, the evidence is more likely to be excluded under s. 78 of the
Police and Criminal Evidence Act 1984 The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise ...
. 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 specific fact that 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 act reverses the common law position that such failures could not be used as evidence of guilt. 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.


Direction to the jury

In appropriate cases, the judge should direct the jury as to the proper limits of the inference of silence. The
Judicial Studies Board The Judicial College, formerly the Judicial Studies Board (JSB), established in 1979, is the organisation responsible for training judges in county, the Crown, and higher courts in England and Wales and tribunals judges in England & Wales, Scotlan ...
have provided a specimen direction, which has been accepted by the
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
. 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 The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
but the European Court of Human Rights has held that The 2007 case of
O'Halloran and Francis v. United Kingdom ''O'Halloran and Francis v. United Kingdom'' was a 2007 European Court of Human Rights case. The case revolved around a challenge to a requirement in the United Kingdom's Road Traffic Act 1988 that owners of a speeding vehicle provide police wit ...
was held by the European Court of Human Rights that the right to silence did not extend to motorists who refused to provide information about who was driving a speeding car when asked by the police.


Exceptions

* The Regulation of Investigatory Powers Act 2000 s.49 and s.53 make it a criminal offence (with a penalty of two years in prison, or five years with regards to child sex offences) to fail to disclose when requested the key to any
encrypted In cryptography, encryption is the process of encoding information. This process converts the original representation of the information, known as plaintext, into an alternative form known as ciphertext. Ideally, only authorized parties can decip ...
information. * When a vehicle is alleged to have been involved in an offence, section 172 of the
Road Traffic Act 1988 The Road Traffic Act 1988 (c. 52) is an Act of the Parliament of the United Kingdom, concerning licensing of vehicles, insurance and road regulation. Contents Part I contains a number of traffic offences including causing death by dangerous drivi ...
, as amended by section 21 of the Road Traffic Act 1991 enables the police to require the vehicle's registered keeper, or any other relevant person, to provide information as to the identity of the vehicle's driver. A special warning is given indicating that refusal to do so constitutes an offence in itself. * Under the
Police Reform Act 2002 The Police Reform Act 2002 (c.30) is an Act of the Parliament of the United Kingdom. Amongst the provisions of the Act are the creation of the role of Police Community Support Officers, who have some police powers whilst not being 'sworn' cons ...
a person failing to provide a constable in uniform or designated person their name and address where they are suspected of having behaved or behaving in an anti-social manner is a criminal offence.


See also

*
Fifth Amendment to the United States Constitution The Fifth Amendment (Amendment V) to the United States Constitution addresses criminal procedure and other aspects of the Constitution. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amend ...


References


Further reading

* {{DEFAULTSORT:Right To Silence In England And Wales Criminal procedure English criminal law