Gourt Home::Gourt :: Right to silence
The right to silence is a legal protection enjoyed by people undergoing police interrogation or trial in certain countries. The law is either explicit or recognized in many legal systems.
The right covers a number of issues centred 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 (which is most often 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 seipsum accusare ('no man is bound to accuse himself') became a rallying cry for religious and political dissidents who were prosecuted in the infamous 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 take the stand 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 of the Canadian Charter of Rights and Freedoms. It protects an accused from answering questions that may be incriminating from the moment of arrest up until the accused is provided with legal counsel. Outside of this period there is no right to silence, which is often confused with the US right which persists after access to counsel is given.The 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.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
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 then, 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 in common law, the defendant was "incompetent" to give evidence and attempts to force answers, such as the efforts of the Star Chamber were judged unlawful - although often later than some individuals may have hoped. 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.
The act allows for negative inferences "as seem proper" to be made if a defendant fails to mention a fact later relied on in defence that could have reasonably be given earlier, seen as evidence of later fabrication. Inferences can also be made from a refusal to account for "objects, substances or marks". These inferences are limited to facts that were later relied on and the circumstances of the defendant at the time of questioning have to be considered.
Following the act, the wording of the caution given at time of arrest was changed correspondingly. See Miranda Warning#Equivalent rights in other countries.
The act provides that a defendant cannot be convicted solely due to their silence, this position was reinforced by the House of Lords (R. v. Kevin Sean Murray (1993)) and partly by the European Court of Human Rights (John Murray v. United Kingdom (1996), Condron v United Kingdom (2001)), which also restated the need for early access to legal advice. The inferences a jury can draw from silence or failure to mention facts are given to them as the English Model Directions, derived from R. v. Cowan (1996), R v. Birchall (1999), and the cases judged by the ECtHR. *
There is little valid empirical data on the use of the right to silence during police questioning, the reports that do exist offer very differing figures on the use and the circumstances of the use of silence. It is generally believed that the majority of convictions are derived from, or substantially aided by, self-incrimination.
See also
External links
"Right to silence"