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The Right To Remain Silent Essay

3432 words - 14 pages

The Right to Remain Silent The right of silence long considered the most fundamental right of a
suspect, was curtailed by the Criminal Justice and Public Order Act
1994 . The evidence provisions of the Criminal Justice and Public
Order act 1994 (CJPOA), were some of the most contentious and hotly
debated.[1] The Act changes the rules that govern how a court should
deal with the silence of a suspect or a accused and in doing so,
potentially makes inroads into an individuals right regarded as
fundamental.

Since the introduction of the CJPOA 1994, the failure by an accused to
mention facts during police questioning, which are later relied on at
trial, or failure to testify at trial, may now be the subject of
prosecution comment at trial. The court may draw appropriate
inferences form any such failure. Inferences cannot in themselves
provide sufficient evidence for a conviction: a prima facie case must
first be established form other evidence. But inferences may be used
to reinforce the prosecution case or undermine that of the defence.

The crux of the provisions is that the accused’s failure to mention
facts during police questioning, which are later relied upon at trial,
or failure to testify at trial, may be the subject adverse inferences.

The European Court of Human Rights has held that the inferences from
silence provisions do not in themselves breach European Convention on
Human Rights. However, seeking to found a conviction solely on
inferences would be a breach, as would the drawing of inferences form
silence during any period when the suspect had been denied legal
advice.[2]

The statement by Lord Bingham CJ in Argent,[3] that the giving of
legal advice to remain silent is a “very relevant consideration” in
applying s.34, coheres with the statement by the E.C.H.R. in Condron v
UK[4] that

“the fact of legal advice [to be silent] should be given appropriate
weight as there may be good reason for that advice” (emphasis
supplied).

Legal advice to remain silent does not necessarily mean that the
accused’s failure to mention facts later relied on at court is
reasonable and that no inferences can be drawn. It is only one factor
in a wider assessment of whether silence was reasonable; in particular
it is important to consider why the suspect accepted the legal advice.

In Condron,[5] the Court of Appeal (CA) held that the mere fact that
such advice had been given could not prevent the drawing of adverse
inferences under s. 34 CJPOA 1994. The difficulty this created for the
accuser’s lawyer was recognised in Argent,[6] but he CA stated that
whilst the legal advice given is a...

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