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A essay written on The effect of the Criminal Justice and Public Order Act 1994 on a defendant’s right to silence
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The effect of the Criminal Justice and Public Order Act 1994 on a defendant’s right to silence?Witnesses, as a rule, are compellable to answer questions of which are put to them in court.
However, there is one exception to this rule, this is the privilege from self-incrimination, this
means that suspects are not required to give evidence or answer questions.
Whilst in countries as such as the United States the right to silence is absolute, in the United
Kingdom this right has been severely curtailed by the introduction of the Criminal Justice and
Public Order Act 1994. The introduction of this act has allowed for adverse inferences to be
drawn by a suspect’s failure to disclose facts to the police which they later rely on (S.34), failure
to failure to testify at court in their own defence (s.35), failure to provide explanations for
incriminating objects, substances or marks (s.36) and failure to provide an explanation for one’s
presence near the scene of a crime (s.37). These provisions from the act have drawn
widespread criticism right across the legal profession.
Even though the jury is able to draw inferences from silence, it can be claimed that the right to
silence does still exist within the UK as it is not a crime to remain silent 1.
Prior to the introduction of the 1994 legislation a suspect in criminal proceedings in the UK was
able to enjoy a largely unrestricted right to remain silent when being interviewed under
caution. At that point of time the prospect of inferences being drawn from silence received an
enormous amount of opposition from The Bar Council, The Law Society, civil liberties groups
and many others. It was argued that the reforms could lead to false confessions being made
alongside a prediction that juries may attach too much significance in a case the to a
defendant’s silence. However, it was also argued by supporters of the legislation that those
who are innocent can only gain from assisting the prosecution, but it may not always be as
straightforward in particular as to when one is answering police questions before trial.
It is section 34 of the Criminal Justice and Public Order Act 1994 which allows the jury in some
circumstances where a suspect fails to give facts to the police which he later relies on in his
defence. This provision can be identified as the common-sense provision, as only the guilty
should have something to hide and there is a public interest in attaining as much information as
possible in order to convict the guilty. Research conducted by Phillips and Brown in 1998
showed that this provision was fulfilling one of its objectives to an extent, as 84% of suspects
were answering police questions which was up from 77% before the legislation. The amount of
ambush defences2 was something of which was a major area of concern and it was an objective
of section 34 to discourage defendants from running this late in the trial process. For it to be
said that the allowance of inferences is common sense is right in a way of which in reality it is
what juries are likely to do behind closed doors anyway. However, it can be said that even the
mere suspicion of those who are innocent can make them feel highly uncomfortable, linked
with the distress of having to give an ambiguous answer which may be used as evidence
towards a charge, the erosion of the right in these circumstances is clearly an erosion of civil
liberties.
1
Lord Chief Justice in Cowan 1996
2
Where a defendant would not give his version of events until the trial.
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