The Right to Silence - Essay Example

of the of the of the The Right to Silence The right to silence enables a suspect to remain silentduring interrogation by the police. It has been justified as protection from self – incrimination. Thus, remaining silent during the pre-trial stage, constitutes a special privilege, whereby an accused, who believes on reasonable grounds that he is suspected of having committed a crime, can remain silent, during the trial. Such a person can refuse to supply information to the interrogating authority, with regard to the occurrence of the offence (Hocking and Manville 63). Moreover, he can refuse to divulge information about the identity of the participants in the crime. A second issue associated with the exercise of the right to remain silent, concerns protection from unfavourable inference by the court. This is a significant issue, as courts, frequently, treat silence as guilt on part of the accused. Silence tends to generate doubts against the defence made by the accused, during the trial (Hocking and Manville 63). In England, the right to remain silence, during interrogation by the police, was developed in 1829. This right came into force with the establishment of the professional police force. Prior to the development of this principle, there were complaints that confession were illegally obtained by the police. Under this right, a suspect can refuse to answer the questions posed by the police or courts. The 1912 guidelines, relating to the interrogation of suspects by the police, gave effect to this right. Furthermore, this instrument incorporated a right to silence in the Judges’ Rules (Skinnider and Gordon). The right to remain silent is inherent in the legal system of the majority of the countries. The accused can exercise this right during pre-trial interviews and interrogations, conducted by the police. Another right, in the criminal justice system is the privilege against self-incrimination. The right to remain silent and protection against self-incrimination have connoted different things at different times (Skinnider and Gordon). In England, the privilege against self-incrimination was initially available, only to individuals under oath. All the same, those under oath were prevented from giving evidence, and this enabled the prosecution to subject the accused to incriminating questioning (Skinnider and Gordon). In Ibrahim v R, the court held that the confession of the accused could be accepted only if such confession had been voluntarily provided, by the accused. The prosecution was required to establish that the accused had voluntarily confessed his guilt (Ibrahim v R). The right to remain silent has long been deemed to be a fundamental right of an accused person. However, the Criminal Justice and Public Order Act 1994 has significantly reduced the effectiveness of this right. This Act empowers the courts to draw conclusions from the silence of an accused person, under the following circumstances (Curtailment of the right to silence). First, if the accused fails to mention a fact, during the trial, even though that fact directly relates to his defence, the court may arrive at its own conclusions regarding the accused. Second, if the accused fails to mention a fact, on being charged with some offence, which should have been reasonably mentioned by the accused (Curtailment of the right to silence). Third, if the accused fails to acknowledge the objects, substances, or marks on his body, clothing or personal effects found at the place where the accused was arrested. Fourth, if the accused fails to account for his presence at the place where the offence was committed, at the time that the offence had been committed (Curtailment of the right to silence). The Criminal Justice and Public Order Act 1994 has come into force, from April 1995. This Act places a number of restrictions on the exercise of the right to silence by suspects, during trial and police interrogation. If the accused chooses to abstain from mentioning facts during questioning, which are subsequently relied upon in the trial, may be rendered the subject of prosecution comment. In addition, such failure to disclose facts permits the court to arrive at its own inferences (Bucke, Street and Brown). Thus, the Criminal Justice and Public Order Act 1994 enables the courts to draw appropriate conclusions, with regard to the charges against the accused if the latter remains silent. Despite the fact that this Act has restricted the application of the right of silence, it has not abolished this right completely. All the same, the accused can exercise the right to remain silent, during police interrogation. In addition, the accused can choose to refrain from testifying in court. However, if the accused maintains silence, then the court proceedings could prove prejudicial (Bucke, Street and Brown). The right to silence permits the accused to provide evidence or to abstain, during a criminal trial. Moreover, there is no general duty to assist the police, in their enquiries. It is the responsibility of the prosecution to establish the allegations made against the accused. Furthermore, the prosecution cannot attempt to establish the defendant’s guilt, on the basis of his silence during interrogation (Right to silence). This principle of right to silence has been considerably watered down, in the recent past. Consequently, a defendant who fails to provide an explanation, at the time of his interrogation by the police, may have to envisage a situation, where the jury or judge may draw an adverse inference from such silence (Right to silence). As such, there has been a gradual transformation of the law of England and Wales. At present, the accused’s silence can be treated as guilt. Although, the accused need not provide information, the changes effected have made it obligatory for the accused to give evidence (Hocking and Manville 69). The Criminal Justice and Public Order Act 1994 requires the accused to mention the facts relating to the charge framed against him, if the accused intends to rely on these facts, in his defence (Hocking and Manville 70). These developments, which make it difficult for the accused to exercise his right to silence and not to be incriminated, have not been upheld at the European level. For instance, in Funke v France, the European Court of Human Rights held that under the provisions of Article 6(1) of the Human Rights Convention, the plaintiff had a right to a fair trial. This right had been compromised by a requirement to disclose his tax documents, which could prove to be tantamount to self-incrimination (Funke v France). Moreover, in Kansal v UK, the Official Receiver had compelled the accused to make certain statements. The use of these statements at a subsequent trial was in breach of the fair trial requirements of the European Convention on Human Rights (Kansal v UK). The right to silence is a privilege against self incrimination. It is aimed at protecting the citizens against the excesses committed by investigating agencies. It is also aimed at safeguarding the accused from the abuse of power in judicial interrogation. Any system of justice regards an accused person to be innocent till such time as his guilt is established by the prosecution, beyond all reasonable doubt. If the right to silence is rescinded or if the court is permitted to draw conclusions from the silence of the accused, this does not eradicate the possibility that criminals will escape from their crimes. Such risk can be eliminated to a major extent, only by conducting a thorough investigation into the crime and collecting incontrovertible proof of the guilt of the accused. However, the Criminal Justice and Public Order Act 1994, enables the court to draw inferences from the silence of the accused. After the enactment of this Act, the privilege of Right to Silence has proved to be harmful to the defence of the accused, in court proceedings. A fair balance should be maintained between the defence of the accused and the investigations made by the authorities. It is only a systematic and meticulous investigation of the crime that can render justice to all. Works Cited Bucke, Tom, Robert Street and David Brown. The right of silence: the impact of the Criminal Justice and Public Order Act 1994. Home Office Research Study 199. London: Research, Development and Statistics Directorate, 2000. "Criminal Justice and Public Order Act ." Her Majestys Stationery Office, 1994. Curtailment of the right to silence. 18 August 2008. 3 January 2011 . "European Convention on Human Rights." The Convention for the Protection of Human Rights and Fundamental Freedoms. Rome: Secretary General of the Council of Europe, 3 September 1953. Funke v France. No. 16 EHRR 297. 1993. Hocking, Barbara Ann and Laura Leigh Manville. "What of the right to silence: still supporting the presumptions of innocence, or a growing legal fiction?" Macquarie Law Journal 1.1(2001): 63 – 92. Ibrahim v R. No. AC 599. 1914. Kansal v UK. No. 39 EHRR 31. 2004. Right to silence. n.d. 3 January 2011 . Skinnider, Eileen and Frances Gordon. "The Right to Silence - International Norms and Domestic Realities." Vancouver, B.C. Canada: The International Centre for Criminal Law Reform and Criminal Justice Policy, October 2001. Read More