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Law of Criminal Evidence - Case Study Example

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Right to remain silent come under Miranda Warnings in US. In UK, this right had been regarded as the fundamental right1 of a suspect. It is difficult to find historical background though it is based on Latin maxim nemo tenetur seipsum accusare ('no man is bound to accuse himself')2.
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Law of Criminal Evidence

Download file to see previous pages... This includes any informal chat with police officers and contradictory to popular belief, right to silence has not been abolished.7 In recent years it has been endangered so that a magistrate can draw adverse inference from the silence.
Adrian, taken to Police Station on the suspicion of murdering wife Sandra, had informed his solicitor that he had been drinking heavily. According to solicitor's advice, Adrian keeps silent during interrogation. During trial, he testifies that he kept silent on solicitor's instructions as he was under influence of alcohol and could have accused himself8. Again his testimony that he killed Sandra under provocation of her having an affair creates a controversy. If he was going to testify so, in what way he could have accused himself more than that One wonders at the necessity of remaining silent during interrogation. No doubt it provided him time to frame his evidence; but his confession to crime contradicts the relief provided by being silent9 and it is not his role to assist the police to build up a case against him and it is always better to say nothing if in doubt and it does not prove Adrian's guilt.
Right exists to avoid self-incrimination and it extends from the moment free movement is terminated either by arrest or by being in police station, till the end of trial. It cannot be said that is very practical in Adrian's case10 although the background of the case is very important and throw further light.

"Whether advice to remain silent is the result of a case specific evaluation or whether it is a strategy applied to classes of case or classes of suspect, or whether it is a general strategy applied by certain types of staff utilised for police station advice by some firm of solicitors11"

Terrorism laws have undermined the significance of this right. As it stands, while accused is entitled to remain silent, he is also cautioned that during trial adverse inference could be drawn from such a silence, as being silent due to guilt, or planning to fabricate fiction. In Adrian's case, as what he told the court could have as well been told the police as even dislodging of alibi do not exist here. It could also be argued that he deliberately kept silent to misguide the interrogating officers and prosecution. According to research, protecting others too could be a reason for silence.

"Although it is often assumed that guilt is the only significantly occurring motive for silence, the present findings suggest that protecting others is a motive in a small but significant proportion of silence cases12."

In May, 2000, a couple convicted on drug charges won legal action in European Court of Human Rights over comments of the trial judge on their silence13. ECHR ruled that their fair trial rights were violated by judge's comments on their silence during interrogation14. As they were suffering from heroin withdrawal symptoms, they were asked by solicitor to remain silent15. Judge had given the option of drawing an 'adverse inference' from their silence. Court also ruled that silence is not an absolute right in all cases even though it is accepted as the most fundamental right of the suspects; but was curtailed by Criminal Justice and Public Order Act 1994. Failure to mention fact can be allowed to draw inference.


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