Criminal Law Revision Committee 11th Report, Right of Silence
| Author | A. A. S. Zuckerman |
| Published date | 01 September 1973 |
| DOI | http://doi.org/10.1111/j.1468-2230.1973.tb01382.x |
| Date | 01 September 1973 |
REPORTS
OF
COMMITTEES
CRIMINAL
LAW
REVISION
COMMITTEE
11th REPORT,
RIGHT
OF
SILENCE
THE proposals of the Criminal Law Revision Committee in its
11th Report have given rise to extensive debate both in the
public and among the profession.2 The Committee’s recommenda-
tions on the right to silence have figured prominently in this debate
which,
at
times, has taken on rather emotive tones. The issues,
it seems, have been obscured in the heat of the debate.
It
might
perhaps be useful to examine some aspects
of
the impact of the
proposals on the right of silence as it exists under the present
law and
to
deal with the main objections that have been raised.
Before doing that it is necessary to describe and state the law as
it now stands.
Present
state
of
the
law
The right of silence has two main implications. First, the
liberty
*
not to answer questions when interrogated by the police,
not to make any statement during committal proceedings, and
not to testify when put on trial. This means that
a
person cannot
be compelled to answer police questions
or
to give evidence. nor
does
his
refusal to do
so
constitute an offence.
The second implication
of
the right of silence is more com-
plicated.
It
concerns the effect that
it
has on the judge’s freedom
to comment on the accused’s silence.‘ There is
a
statutory distinc-
tion between comment
on
the accused’s failure to testify at the
trial, on the one hand, and his failure to answer questions put to
him before the trial by the police
or
other authorised persons,
on the other. This distinction follows from section
1
(b)
of the
Criminal Evidence Act 1898 which prohibits comment by the
prosecution on the accused’s failure to give evidence. There is
no
comparable prohibition regarding the accused’s failure to disclose
1
Cmnd.
4991,
hereinafter-the
Report.
2
See the House
of
Lords debate on the report: Hansard,
H.L.
‘Debates,
vol.
338,
cols.
1546 et seq.
For referetces to the press, see Miller, Silence
and Confessions-what are they worth
The term
is
used
here in its strict jurisprudential or Hohfeldian sense; see
Salmond on Jurisprudence
(12th ed.
1966)
925
et seq.
4
Report,
para.
29; Cross
on
Evidence
(3rd
ed.
1967) 40 et seq.;
Glanville
Williams,
The
Proof
of
Guilt
(3rd
ed.
1963)
37
et
seq.;
O’Regan,
“
Adverse
inferences from failure of an accused person to testify
”
[1965]
Crim.L.R.
711.
6
For the historical background of this
section,
see the
Report,
para.
112.
On
the Act in general, see Glanville Williams,
The Proof
of
Guilt, op. cit., 45
et seq.
[1973]
Crim.L.R.
343.
509
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