These extensive bullet points outline an essay which debates whether there really is a right to silence in English Criminal Evidence Law. The notes cover the law as it stood in 2015. Using this essay plan, I went on to get 75 in my Criminal Evidence exam and left the University of Sheffield with a...
Introduction
- As a rule, witnesses are compellable to answer questions put to them in court.
- However one exception to this rule is the privilege from self-incrimination, which means that suspects are not required to give
evidence or answer questions put to them.
- However, while in countries such as the USA the right to silence is absolute, since the introduction of the CJPOA 1994 this
right in the UK has been severely curtailed, allowing ‘proper inferences to be drawn by a suspect’s failure to disclose facts to
the police which they later rely on (s.34), 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 have drawn widespread criticism right across the legal profession.
- While the jury may be able to drawn inferences from silence, some claim that the right of silence still exists within the UK
because it is not a crime to remain silent (Lord Chief Justice in Cowan 1996).
- Despite this, before the introduction of the 1994 legislation, the prospect of inferences being drawn from silence gained
massive opposition from The Bar Council, The Law Society, civil liberties groups and many others.
- Many argued that the reforms would lead to false confessions being made, and the prospect of juries attaching too much
significance in a case to the defendant’s silence.
- However the Conservative government pressed ahead with the legislation which has been attributed to a crime control
agenda adopted by the party at the time.
- Indeed, those who support this agenda would argue that innocent people can only gain from assisting the prosecution.
- But it cannot always be this straightforward, particularly where answering police questions before trial is concerned.
Section 34
- Section 34 allows the jury in some circumstances where a suspect fails to give facts to the police which he later relies on in his
defence.
- For the crime control minded, this is a common sense provision since only the guilty should have anything to hide, and there
is a public interest in getting as much information as possible in order to convict the guilty.
- In support of the law it can be seen of fulfilling one of its objectives to an extent. Research in 1998 by Phillips and Brown
showed that 84% of suspects were now answering police questions, up from 77% before the legislation.
- Furthermore, a major concern was the amount of ambush defences where the defendant would not give his version of events
until the trial.
- Furthermore, allowing inferences is just common sense and in reality is just what juries would do anyway behind closed
doors.
- But critics point to the fact that for the innocent, the mere suspicion of guilt can make them feel highly uncomfortable.
Coupled with the fear of being forced to give an ambiguous answer which could be used as evidence towards a charge, the
erosion of the right in these circumstances is clearly an erosion of civil liberties.
- While the ECtHR has declared that the right to silence lies ‘at the heart’ of Art.6, they have declared that it is not an absolute
right (Condron v UK).
- But this does not give the courts a free role to find suspects guilty because of their silence.
- S.38(3) provides that a conviction cannot be made solely on inferences drawn from guilty.
- The ECtHR in Murray v UK placed emphasis on this section, further declaring that a conviction cannot be based ‘solely or
mainly’ on silence.
- However the court made clear that allowing adverse inferences to be drawn in some situation does not violate Art.6.
- But in which situations will drawing inferences be acceptable?
- This is one big question that the courts have had to get to grips with.
- In Argent, the court set out six safeguards which must be fulfilled before the jury could draw inferences. One of these is that
an inference should only be drawn if the suspect failed to mention a fact that ‘he could have reasonably been expected to
mention’ in the circumstances existing at the time.
- This however can be a major problem where legal advice is concerned.
Legal Advice
- Firstly, not everyone receives proper legal advice in the first place for a variety of reasons.
- Research conducted by Sanders and Bridges showed that police officers actively use techniques in order to discourage access,
such as reading the suspect’s rights too quickly or failing to mention that it is free.
- Furthermore, for innocent suspects, the environment of the police station can be pretty daunting and many will just want the
ordeal to be over as quickly as possible.
- Zander quotes LRSC research which shows that one in five suspects decline legal advice solely to prevent the delay.
- However, perhaps more controversially, inferences can sometimes be drawn even when a suspect has got a legal adviser who
has told them to remain silent.
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller Buddy1. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for £4.98. You're not tied to anything after your purchase.
