Right to Silence in UK Law

Leading Cases
  • Brown v Stott (Procurator Fiscal, Dunfermline)
    • Privy Council
    • 05 Diciembre 2000

    The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute.

    It is important therefore to distinguish between those Convention rights which are to be regarded as absolute and those which are not. As Keir Starmer, p. 182, para. 4.75 has observed, where express restrictions are provided for by the Convention there is no room for implied restrictions. But where the European Court has read implied rights into the Convention, it has also read in implied restrictions on those rights.

    The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused.

  • Jefferson Ltd v Bhetcha
    • Court of Appeal (Civil Division)
    • 03 Mayo 1979

    I should be prepared to accent that the court which is competent to control the proceedings in the civil action, whether it be a Master, a Judge, or this Court, would have a discretion, under section 41 of the Supreme Court of Judicature (Consolidation) Act, 1925, to stay the proceedings, if it appeared to the court that justice - the balancing of justice between the parties - so required, having regard to the concurrent criminal proceedings, and taking into account the principle, which applies in the criminal proceeding itself, of what is sometimes referred to as the "right of silence" and the reason why that right, under the law as it stands, is a right of a defendant in criminal proceedings.

    In my view it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors. By way of example, a relevant factor telling in favour of a defendant might well be the fact that the civil action or some step in it, would be likely to obtain such publicity as might sensibly be expected to reach, and to influence, parsons who would or might be jurors in criminal proceedings.

  • R v Essa (Daha)
    • Court of Appeal (Criminal Division)
    • 14 Enero 2009

    Certain it is that the right to silence is part of the right to a fair trial, as it is certain, even more importantly but distinctly, that the right not to incriminate oneself is. However, for the same reasons as section 34 is compatible with the European Convention, so is section 11(5) which entitles comment by the Crown on the absence of a defence statement. Contrary to any submission otherwise, the use which can be made of section 11(5) is not without judicial control.

  • R v Cowan
    • Court of Appeal (Criminal Division)
    • 12 Octubre 1995

    We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt or add to it in the particular circumstances of an individual case. But there are certain essentials which we would highlight.

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Legislation
  • Police Reform Act 2002
    • UK Non-devolved
    • 1 de Enero de 2002
    ... ... Order Act 1994 (powers for food crime officers: inferences from silence) .F423(h) ... complaint;(b) the outcome of the handling of the complaint;(c) any right to apply for a review conferred on the complainant by paragraph 6A or 25 ... ...
  • Criminal Justice and Public Order Act 1994
    • UK Non-devolved
    • 1 de Enero de 1994
    ... ... 84. # M14 1968 c. 34 (N.I.) ... 26: No right to bail for persons accused or convicted of committing offence while on ... 69 ... Inferences from accused’s silence ... 34: Effect of accused’s failure to mention facts when questioned or ... ...
  • Terrorism Act 2000
    • UK Non-devolved
    • 1 de Enero de 2000
    ... ... action of the Secretary of State is incompatible with a Convention right, F19and(b) a reference to the refusal to deproscribe against which an ... ...
  • Order in Council Reulating Appeals to his Majesty in Council Form Jersey.
    • UK Non-devolved
    • 1 de Enero de 1671
    ... ... Earle of Lauderdaill ... Whereas severall propositions for the right Administration of Justice in the Island of Jersey were presented to his ... in pleading but that the plaintiff propose his demand ffirst, silence being kept by the other in the mean while, then the Defendant make his ... ...
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Books & Journal Articles
  • The right to silence: Inferences and interference
    • No. 47-1, April 2014
    • Journal of Criminology (formerly Australian and New Zealand Journal of Criminology)
    The right to silence, or the privilege against self-incrimination, has long been recognised as an important procedural protection for the accused in the criminal process. The legislature of New Sou...
  • The Right to Silence and Undercover Police Operations
    • No. 5-2, June 2003
    • International Journal of Police Science and Management
    While conducting doctoral research on international undercover operations, the author attended undercover training courses in the United States (US) and in Canada. He also conducted interviews with...
  • A pragmatic attitude: The right to silence in the Netherlands
    • No. 12-3, September 2021
    • New Journal of European Criminal Law
    This article examines the workings of the right to silence in a system, which retains a large number of the original ‘inquisitorial’ elements. The right to remain silent was and is a highly contest...
  • Silence with caution: The right to silence in police investigations in Belgium
    • No. 12-3, September 2021
    • New Journal of European Criminal Law
    This article is about the right to remain silent within Belgium. Although the right has always been considered applicable, both the courts and parliament have historically demonstrated a disinclina...
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Law Firm Commentaries
  • Cybercrime Loses Its Right to Silence
    • JD Supra United Kingdom
    In 2012, the director gen¬eral of MI5 revealed that a London-listed company had lost £800 million as a result of a state-backed cyber at¬tack. The company in question has not been publicly identifi...
  • To Comment Or Not To Comment, That Is The Question
    • Mondaq UK
    ... ... provide a 'no comment' interview (exercise their right ... to silence) ... answer some questions ... answer all the questions; or ... ...
  • Looking into workplace investigations, Part 10 – sticking to the brief? (UK)
    • LexBlog United Kingdom
    One question which may come up at or before you plunge into your investigation questions is that of legal representation at the meeting for the witness.  If the employee says that he wishes to brin...
  • RFID: Silence Of The Chips
    • Mondaq United Kingdom
    ...The Commission will be investigating whether or not an ... individual has the right to disappear from the ever-more pervasive ... technology and e-networks that surround us. The Commission's ... concerns also include the privacy ... ...
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