Legislation System: Right to Silence Main Topics

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Generally, witnesses in court are compellable to answer questions that are put forward to them. However, the privilege from self-incrimination is the exception to this rule, meaning that suspects are not legally required to answer questions put towards them or give evidence. Countries such as the USA still hold the right to silence to be absolute, but in the UK the introduction of the Criminal Justice and Public Order Act 1994 (CJPOA 1994) has significantly curtailed this right with the following: the allowance of ‘proper inferences to be drawn by a suspect’s failure to disclose facts to the police which they later rely on in court (s.34), the failure to testify in their own defence at court (s.35), failing to provide explanations for incriminating substances, objects or marks (s.36) and failing to explain their presence near the scene of a crime (s.37). 

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These provisions have birthed significant criticism across the legal profession. While the jury might be able to draw inferences from a suspect’s silence, some claim the right to silence still exists in the UK since it is not a crime to remain silent (R v Cowan (1996), per Lord Chief Justice). In spite of this, prior to the introduction of the CJPOA 1994, the prospect of inferences being drawn from silence gained substantial opposition from the Law Society, the Bar Council, civil liberties groups, etc. 

Many raised the argument that the reforms would lead to an increased risk of false confessions, and the danger of juries focusing too much on a defendant’s silence in a case. Despite this, the conservative government continued with the legislation, endorsing it as part of a crime-control agenda which the party at the time had adopted. It must be recognised that those whom supported this agenda may argue that innocent defendants only stand to gain from assisting the prosecution. However, it is not always be so straightforward, especially with answering police questions before court. This essay will provide discussion into the right to silence and examine whether there is a case for restoring it as an ‘unfettered’ right.

S.34 of the CJPOA 1994 allows the jury (under some circumstances) to draw adverse inferences from a defendant’s failure to disclose facts to the police which he then later relies on in his defence at court. For those who prefer a tougher approach to crime control, then this provision is one of common-sense due to the idea that only the innocent don’t have anything to hide and getting as much information as possible to convict a guilty defendant is in the interest of the public. 

Research by Phillips and Brown in 1998 show support for the law as, to an extent, fulfilling one of its aims. The research showed that prior to the legislation, 77% of suspects were answering police questions – the figure following was 84%. Additionally, a foremost concern was the amount of ‘ambush’ defences where a defendant would only give his version of events that occurred at trial, and adverse inferences being drawn are, in reality, what juries were doing behind closed doors anyway. However, critics highlight that for the innocent suspect, the suspicion of guilt alone can make them feel extremely uncomfortable and on edge. 

This together with the fear of being forced to give an ambiguous answer which could then be used as evidence, the erosion of the right is a restriction of civil liberties in circumstances such as these. The European Court of Human Rights (ECtHR) has made the declaration that the right to silence lies at the proverbial ‘heart’ of Article 6, although they did not assert it to be absolute (Condron v UK (1996)) – this does not, however, allow the courts to find a suspect guilty due to their silence; s.38(3) providing that convictions cannot be made on based only on inferences drawn. In Murray v UK (1996) the ECtHR reinforced this, declaring a conviction cannot be made on silence alone. 

With this said, the court clarified that the allowance of adverse inference being drawn does not violate article 6 – this leads to the question of which situations the drawing of adverse inferences is acceptable, and the courts have met this with repeated uncertainty. R v Argent (1997) set out 6 safeguards that are to be satisfied before adverse inferences may be drawn, one of these being that inferences should only be drawn if a suspect fails to mention a fact that ‘he could have reasonably been expected to mention’ in the circumstances existing at the time. This can be problematic, however, when it comes to legal advice.

It is recognised that suspects don’t always receive proper legal advice, and this can be for several reasons. Research by Sanders and Bridges (1990) showed that police officers actively use techniques to dissuade a suspect’s desire for access to it, e.g. by failing to mention that legal advice is free or reading suspects’ rights too fast. Particularly for innocents, the intimidating police station environment alone can make many suspects want to have the experience over quickly, shown by Zander in his quoting of LRSC research showing that 20% of suspects turn down legal advice to speed the process along. 

Moreover, inferences are sometimes drawn regardless of having a legal advisor who has advised the suspect to remain silent, which is perhaps in itself quite controversial. Silence was advised in the case of Argent due to the solicitor feeling that the police failed to disclose evidence in their possession which was of importance, with the court holding that inferences could still be drawn if it was unreasonable to rely on the advice in the circumstances. Two significant issues arise from this: it would appear to be the defendant’s responsibility to decide whether the legal advice is sound or not, and what is actually reasonable in such circumstances may be dependent on the disclosure of what was discussed between client and solicitor (which would be a violation of legal professional privilege). 

Cases that followed also illustrate difficult positions for the defendant to be in, as in Condron the suspects were advised to remain silent due to heroin withdrawal. The ECtHR held that inferences could be drawn if the silence could ‘only be sensibly attributed to the suspect having no good answer to the questions.’ More recently, the Howell case reached the Court of Appeal (CA) and seemed to backtrack on the ECtHR’s approach, confirming Argent in that reliance on advice must be reasonable in the circumstances. 

From this, it seems courts are very conscious over guilty suspects’ reliance on legal advice purely in the evasion of self-incrimination. Dennis (1995) supports this, contending that police cooperation is a positive thing regarding strong evidence, therefore this rule will only penalise guilty suspects. In contrast, Munday (1990) views this as an oxymoron as the Police and Criminal Evidence Act 1984 (PACE 1984) makes legal advice available for all suspects but taking it may still be unreasonable. It should be seen as normal that the normal person relies on professional advice, so making it that a suspect should assess the credibility of their legal advice is contentious. 

This again does not help the innocent suspect, as Cooper (2006) says, ‘the vulnerable suspect in unfamiliar surroundings accepts the professional advice he is given’ – yet following doing so, the innocent may then discover ‘the case against his for relying on this advice is strengthened’. S.43 has been shown to have a prejudicial effect of the defendant, whereas s.35 could be argued not to. 

It may also be argued that the only difference between the common law and this section of the CJPOA 1994 is that it allows comment by the prosecution on the failure of a defendant to testify. S.34 allows entitles the jury to perform cross-examination of it with the defence’s evidence – s.35 entitles the jury to deliberate the prosecution’s evidence (R v Doldur (1993)), meaning that any inferences drawn stem from the prosecution and not the defendant failing to testify. Doldur also held that for s.35 to be considered, there must be an initial prima facie case against the defendant. 

The Crown Court Case Compendium directs that an inference should only be drawn upon no sufficient explanation for his failure to testify. The prosecution’s case must also be so strong that it calls for comment by the defendant, ergo this appears to be a high threshold. Some argue that this just reinforces the common law, as in the previous leading case of R v Martinez-Tobon (1993), the CA warned that the jury is not to equate silence to guilt, whilst holding that the judge may still pass comment if the prosecution and defence case were at odds and if the defendant would have knowledge of such facts. Therefore, the jury could be influenced by the silence of the defendant and so the argument is weak for the defendant had an unfettered right to silence prior to the 1994 legislation. Doak and McGourley (2012) argue that ‘the government obviously set out to change the law, but it’s doubtful that it really did.’

The argument that s.34 has made more innocent suspects answer police question can be made (R v Webber 2004), contending that without it being written in statute, the jury have taken into account a defendant’s silence nonetheless. Zander and Henderson’s 1993 report illustrated that even with the prohibition of comment by the prosecution, in 80% of trials at Crown Courts a defendant’s silence prior to trial was known to the jury regardless, so clearly the jury’s judgement is affected in the context of unopposed evidence. 

Supporters of the CJPOA 1994 tend direct more focus to the safeguards in place for suspects, e.g. the fact that not mentioning facts should be unreasonable in the circumstances and s.38(3), showing the unlikelihood of innocents being found guilty due to silence alone. But in the case of R v McLernon (1992) it was held that anticipating the circumstances where inferences could be drawn is ill-advised as each case is unique to their facts – to the contrary in Cowan where it was held that this would not interfere on the judge’s discretion blithely, depicting an uncertain approach in the law. It begs the question of whether the uncertainty is acceptable regarding the right to silence’s potential effect on an individual’s civil liberties.

The CJPOA 1994 undoubtedly showed a purpose to encourage guilty suspects to disclose information before trial and during, evidenced in part by the increase in people answering questions at police stations – clearly this is a positive effect of the legislation as it allows for the examination of such evidence at court and a generally more straightforward trial process. But this is somewhat halted by the fact that the rate of conviction has not been greatly altered, so this may not provide a significant enough argument for opposing the suppression of the liberties belonging to the defendant, especially when coupling this with the confusion generated surrounding legal advice and legal professional privilege.  

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