The Right of Silence: Judicial Responses to Parliamentary Encroachment

AuthorJohn Jackson
DOIhttp://doi.org/10.1111/j.1468-2230.1994.tb01938.x
Publication Date01 Mar 1994
CASES
The Right
of
Silence: Judicial Responses to
Parliamentary Encroachment
John Jackson
*
The government’s intention to curtail the right of silence in England and Wales
despite the recommendation by the Royal Commission on Criminal Justice to the
contrary has to be seen against the background of increasing legislative willingness
to make inroads into the right and into the privilege against self-incrimination from
which it derives. The areas where Parliament has already intervened to curtail the
right can be broadly categorised as areas of commercial and
co
orate activity,’
public safety,2 national ~ecurity,~ the prevention of terrorism? the protection
and custody of ~hildren,~ and private litigation involving property rights.6
Although it has been claimed that statutory interference with the privilege against
self-incrimination is almost as old as the right it~elf,~ there have been a number of
very serious inroads in recent years and there are other specific areas where
Parliament has been asked to interfere.8 All this makes it increasingly important
to consider the question of how the courts should respond to this diminution of the
right.
The courts have for some time taken a rather Janus-faced attitude towards the
right of silence. On the one hand, it has frequently been pointed out that the
privilege against self-incrimination is rooted in history and is one of the rationales
underlying the rejection of improperly obtained
confession^.^
On the other hand,
the courts have also expressed reservations about the restrictive rules preventing
judges from commenting on the failure of defendants to answer police questions
before trial,IO although they have stressed that it is not for them to make any
changes to the
status
quo.” Behind these reservations lies a basic conflict between
the exercise of the right and the need to secure information in order to convict
those responsible for criminal activity.I2 Aside from the context of police
interrogation, the courts have increasingly shown a lack of sympathy for the
exercise of the privilege against self-incrimination in civil proceedings on the
*Faculty of Law, University of Sheffield.
1
2
3
4
5
6
7
8
9
10
11
12
See
eg
ss
232(2), 290(1), 433 of the Insolvency Act 1986,
s
434(5) of the Companies Act 1985,
ss
105, 177 of the Financial Services Act 1986, and
ss
1
-
11 of the Criminal Justice Act 1987.
See
eg
s
728 of the Merchant Shipping Act 1894, and
s
27 of the Merchant Shipping Act 1979.
s
6 of the Official Secrets Act 1920, as amended by
s
1 of the Official Secrets Act 1939.
s
17 and Sched 7 of the Prevention of Terrorism (Temporary Provisions) Act 1991;
s
23 of the
Northern Ireland (Emergency Provisions) Act 1991.
s
33 of the Family Law Act 1986;
ss
48,
50
and 98 of the Children Act 1989.
s
31 of the Theft
Act
1968;
s
9 of the Criminal Damage Act 1971;
s
72 of the Supreme Court Act
1981.
Smith
v
Director
of
Serious
Fraud
Office
[1992] 3 All
ER
456, 472
per
Lord Mustill.
The National Society for the Prevention of Cruelty to Children, for example, has recently called for a
review ofthe right
of
silence in cases where parents are charged with the murder
or
assault of their
children:
J.
Laurance, ‘Silent Right “Frees Violent Parents”,’
7he Times,
18 March 1993.
See eg
R
v
Sang
[I9791 2 All ER 1222, 1230;
Lam
Chiming
v
R
[1991] 3 All ER 172, 178.
See eg
R
v
Gilbert
(1977) 66 Cr App
R
237, and
R
v
Alladice
(1988) 87 Cr App
R
380.
R
v
Gilbert
(1977) 66 Cr App
R
237, 245.
For further discussion, see A.A.S. Zuckerman,
The Principles
of
Criminal Evidence
(Oxford:
Clarendon Press, 1989) ch 15.
@
The Modern Law Review Limited
I994
(MLR
57:2,
March). Published by Blackwell Publishers,
108
Cowley Road, Oxford
OX4
11F
and
238
Main Street, Cambridge, MA
02142.
USA.
270

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