Evolution of an Erosion
| DOI | 10.1177/0022018317694721 |
| Date | 01 April 2017 |
| Published date | 01 April 2017 |
| Subject Matter | Comment |
The Journal of Criminal Law
2017, Vol. 81(2) 103–111
Evolution of an Erosion: The
ª The Author(s) 2017
Reprints and permissions:
Historico-legal Development of
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0022018317694721
Sections 34–38 of the Criminal
journals.sagepub.com/home/clj
Justice and Public Order Act 1994
Catha´l MacParthola´n
Bangor University, School of Law, College Road, Bangor, UK
Abstract
This article critically examines the development of statutory restrictions on the common law
right to silence in the UK, providing insight from common law, jurisprudence and historical
legal contexts, and considering the broader context of the privilege against self-incrimination,
and critically evaluates the development restriction of the right, by ss 34–38 of the Criminal
Justice and Public Order Act 1994.
Keywords
Right to silence, self-incrimination, CJPOA 1994
The right to silence was significantly altered by ss 34–38 of the Criminal Justice and Public Order Act
1994, which restricted the previous common law right. Though curtailed, this loosely termed right can be
said to bear various dimensions.1 In its broadest sense, the right to silence signifies that suspects cannot
be compelled to answer questions or to testify in court proceedings where the resultant evidence would
be admissible in proceedings against them.2 The right is regarded as a fundamental cornerstone, with
long historical antecedents in the common law world.3 However, disputes over the nature of the right
1. Balance in The Criminal Law Review Group, The Right To Silence: Interim Report (31st January 2007) at 3. Available at:
http://justice.ie/en/JELR/InterimReport.pdf/Files/InterimReport.pdf (accessed 26 July 2016).
2. Ibid. at 3.
3. Ibid.
Corresponding author:
Catha´l MacParthola´n, Bangor University, School of Law, c/o Athrolys, School of Law, Bangor University, College Road, Bangor
LL57 2DG, UK.
Email: cathalmacp@outlook.com
104
The Journal of Criminal Law 81(2)
itself have, in British common law, produced almost as much controversy and confusion as did the
statutory restrictions on that right.4
The inception of the right in the UK appears to have been a gradual one, by increments of common law. By
the early 17th century, arguments in opposition to the inquisitorial oath began to rely upon the Magna Carta
and the common law, which limited the Crown’s sovereignty.5 Traditional theories held that the right crept
into the common law in the mid-17th century, following the demise of the political courts of the Star
Chamber and High Commission.6 Wood and Crawford argue that the demise of Star Chamber and Com-
mission can be attributed to the widespread hostility aroused by compulsory testimony upon oath.7 They
maintain that the right to remain silent before one’s accusers emerged in England as a basic democratic right
‘established by public agitation long before it became the subject of judicial consideration.’8
According to MacNair, it is only from the late 17th century, at the very earliest, that signs began to
present of a general right to silence in the face of charges to crime in common law cases.9 Revisionists
have disputed this theory, and there is compelling historical evidence that the right against self-
incrimination was derived from an array of values, both religious and secular.10
However, the Criminal Law Revision Committee (CLRC) stated in its Eleventh Report11 that the
common law principle did not fully emerge until the 19th century, when the courts attempted to offset
disadvantages to the accused caused by a variety of reasons—including the prohibition against defen-
dants’ testimony; the poor quality of juries, magistrates and legal representation; the indecent haste with
which trials were then conducted; and the provision of insufficient rights of appeal.12
The Royal Commission on Criminal Procedure Report maintained that judicial recognition of the right to
silence developed during the 19th century, as part of a growing desire to strike a balance between the power of
the state and the rights of the individual.13 The right to silence goes some way to correct the power imbalance
between the accused and the state.14 Indeed, it could be argued that the right to silence acts to contain the
4. R. Maloney, ‘The Criminal Evidence (NI) Order 1988: A Radical Departure from Common Law Right to Silence in the UK?’
(1993) 16(2) Boston College International and Comparative Law Review 425 at 426. See also D. Dixon, ‘Politics, Research
and Symbolism in Criminal Justice: The Right to Silence and the Police and Criminal Evidence Act’ (1992) 20 Anglo-
American Law Review 27–50 at 27. See also S. Greer, ‘The Right to Silence: A Review of the Debate’ (1990) 53 Modern Law
Review 709 at 710; J.D. Jackson, ‘Recent Developments in Criminal Evidence’ (1989) 40 Northern Ireland Legal Quarterly
105 at 106; G. Branston ‘The Drawing of an Adverse Committal from Silence’ [1998] Criminal Law Review 189–193.
5. G.W. O’Reilly, ‘England Limits the Right to Silence and Moves Towards an Inquisitorial System of Justice’ (1994) 85(2)
Journal of Criminal Law and Criminology 402 at 415. See also Chan Sek Keong, ‘Singapore Law Review Lecture 1996: The
Criminal Process—The Singaporean Model’ (1996) 17 Singapore Law Review 433 at 444.
6. On this topic, Maloney (above n. 4 at fn 10) comments: ‘Star Chamber was a criminal court, and a tool of political oppression,
which gained infamy in the trial of John Lilburne in 1637. Id. at 75-76. Lilburne, charged with printing heretical and seditious
books, refused to take the oath, asserting “before I swear, I will know to what I must swear.” Id. at 76; Lilburne was sentenced
to prison for contempt, but his conviction was overturned by the House of Lords, which declared it in violation of individual
liberty, the law of the land, and the Magna Carta. Id. The Lilburne case created great public outcry, and ultimately led to the
abolition of the oath and the dismantling of both Star Chamber and High Commission. Id.; Benner, supra, at 77.’
7. Greer, above n. 4 at 710.
8. J. Wood and A. Crawford, The Right of Silence: The Case for Retention (The Civil Liberties Trust: London, 1989) 5.
9. See also S. Greer, above n. 4 at 711. See also M.R.T. McNair, ‘The Early Development of the Privilege against Self-Incri-
mination’ [1990] Oxford Journal of Legal Studies 66.
10. See Maloney, above n. 4 at 428. For discussions of revisionist theory and the policies that shaped the formation of the right
against self-incrimination, see generally Greer, above n. 4 at 710–711. See also L.W. Levy, Origins of the Fifth Amendment
Right Against Self-Incrimination, 2nd edn (Macmillan: London, 1986) 13–24; M.R.T. McNair, above n. 9; and Lane V.
Sunderland, ‘Self-Incrimination and Constitutional Principle: Miranda v. Arizona and Beyond’ (1971) Wake Forest Law
Review 171 at 174.
11. See above n. 4 at 711.
12. Home Office, Criminal Law Revision Committee, Eleventh Report—Evidence (General), Cmnd 4991 (1972) at para. 21. The
report goes on to note that there was no clear justification for the right to silence in the first place (para. 24).
13. Ibid. at paras 1.13–1.21.
14. See O’Reilly, above n. 5 at 419–421. See also B. Ingraham, ‘The Right of Silence, the Presumption of Innocence, the Burden
of Proof, and a Modest Proposal: A Reply to O’Reilly’ (1996) 86(2) Journal of Criminal Law and Criminology at 559.
MacParthola´n
105
otherwise broad reach of the remit of power of the state, by allowing the accused to avoid compulsion to self-
incriminate. It is also seen as necessary to safeguard the autonomy and liberty of individuals.15
There are arguments that the traditional perception of the doctrine of the right to silence, as striking a
balance between civil-libertarian values and utilitarian goals, places a reliance upon a conspicuously
non-factualist analysis.16
While many...
To continue reading
Request your trial