The right of silence, socio-legal research and law reform politics (and Brexit)

AuthorPaul Roberts
Date01 July 2019
DOI10.1177/1365712719838635
Publication Date01 July 2019
SubjectReview Article
EPJ838635 330..338 Review Article
The International Journal of
Evidence & Proof
The right of silence,
2019, Vol. 23(3) 330–338
ª The Author(s) 2019
socio-legal research and law
Article reuse guidelines:
sagepub.com/journals-permissions
reform politics (and Brexit)
DOI: 10.1177/1365712719838635
journals.sagepub.com/home/epj
Paul Roberts
University of Nottingham, UK; China University of Political Science and Law, Beijing, China
The Rise and Fall of the Right of Silence by Hannah Quirk. Abingdon: Routledge, 2017, xviii þ 232 pp, £115.00 (hb),
£36.99 (pb)
Stretching an analogy
The right of silence is both a great deal more and a whole lot less than conventional wisdom
supposes. Its normative foundations are obscure and, many critics believe, overinflated, yet it is
widely regarded as a talisman of procedural due process and has come to be viewed as a core
component of the human right to a fair trial. It is hard to even mention the right of silence—or the
right to silence, or ‘the right of silence’, or ‘the so-called right of silence’, etc—without appearing
to take sides on contested issues of conceptual, jurisprudential or policy controversy. Such debates
are laden down with the baggage of law reform politics, and any further contribution to them is
liable to be seen, and perhaps also to be, partial, in both senses of the term: incomplete and
partisan. Parallels to the current British political scene are irresistible. Neutrality seems impossible
on existential questions of national character or collective fate, yet reliable information on which to
base rational policymaking is in perilously short supply in an era of internet news-fakery and when
nobody trusts experts anymore.
Hannah Quirk is neither a head-banging Brexiteer nor a perfidious Remoaner in the matter of the right
of silence (also now see Quirk, 2018). A commendable feature of this timely monograph, in addition to
the breadth of its scholarship and clarity of expression, is the author’s concern for terminological
accuracy and balanced appraisal of the policy arguments and research evidence. Early assurance is
provided by Quirk’s preference for describing the impact of the Criminal Justice and Public Order Act
1994 ss. 34–38 as ‘curtailing’ the right to silence (pp. 10–11) over factually incorrect (‘abolishing’) and
rhetorically loaded (‘emasculating’, ‘eviscerating’) alternatives. Ultimately, she concludes that the 1994
Act ‘has not made a noticeable difference in terms of increasing charge, plea or conviction rates’, but
‘nor has it had the dire effect that others feared it might—police conduct of interviews is rarely
questioned nowadays and there has been no direct evidence of wrongful convictions as a result of the
changes’ (p. 162). So what was all the fuss about? Indeed, I remember asking myself the same question
when the text of the Bill was first published in late 1993, and the main intent of the silence provisions
appeared to be to authorise (not require) juries to draw logical inferences that they were probably
routinely drawing already, and doubtless always had done. But anecdotes were circulating of police
Corresponding author:
Paul Roberts, University of Nottingham, Nottingham NG7 2RD, UK.
E-mail: paul.roberts@nottingham.ac.uk

Roberts
331
officers gleefully informing defence legal representatives that ‘everything would change’ once the right
of silence had been ‘abolished’. I wondered, possibly a little superciliously, whether they had actually
read the Bill.
More fall than rise: A history of the present
Quirk offers two main reasons for looking afresh at the procedural implications of silence in criminal
proceedings. The first concerns the puzzling fact that the right of silence was the object of intermittent
policy criticism and heated debate for many decades but then virtually disappeared off the policy and
research agendas after the 1994 reforms were enacted. The right of silence seemingly went from being a
celebrated ‘benchmark of justice’ (ch. 1) to a perfunctory historical footnote in only a matter of months.
Thus, ‘despite being “one of the great criminal justice controversies of the twentieth century”, the
influences on and of the English policy on the right of silence were not tracked contemporaneously,
and have received surprisingly little attention since’ (p. 159). So whatever happened, one might well ask,
to the right of silence?
Quirk speculates that policymakers and scholars may have lost interest in the topic when the ‘[e]xtra-
vagant and unsubstantiated claims’ (p. 4) swirling around the 1994 Act were falsified by experience: ‘It
was perhaps the failure of both sets of predictions that meant that discussion of the right of silence
seemed to stop for some years’ (p. 162). Chapter 2 of the book retells the story of the calculated and
apparently coordinated political and judicial assault on the common law’s orthodox approach to the
accused’s silence, which culminated in the 1994 Act—but only after a series of sorties and reverses
stretching back to the 1960s. Discrediting the right of silence as ‘a crime control target’ was achieved
through a long attritional campaign but only needed one decisive victory; rather like a referendum on EU
membership. Even though potted histories of relatively recent legislative change rarely convey anything
truly new, the story is worth retelling because the facts and lessons of history easily evaporate from
short-term memories. Not so long ago, for example, I read that the role of the solicitor in the police
station had been significantly affected by ‘the majority recommendation of [the Runciman Royal]
Commission [on Criminal Justice] that there should, in defined circumstances, be adverse inferences
from a suspect exercising the right to silence’ and that ‘[t]hese recommendations were implemented by
the provisions of the Criminal Justice and Police Order Act 1994 ss. 34, 36 and 37’ (Edwards and
Hardcastle, 2016: 831). But in fact a majority of the Runciman Commission concluded that ‘the
possibility of an increase in the convictions of the guilty is outweighed by the risk that the extra pressure
on suspects to talk in the police station and the adverse inferences invited if they do not may result in
more convictions of the innocent’, and consequently recommended ‘retaining the present caution and
trial direction unamended’ (RCCJ, 1993: ch. 4, para. 22). So we have here a clear corruption of the
historical record, albeit concerning an arguably inconsequential detail in view of the Government’s
dismissive response to the Commission’s actual recommendations (which one former Commissioner
later denounced as verging on the unconstitutional: Zander, 1994; but cf. Hunt and Young, 1995: 225).
Chapter 2’s concise critical history reliably bears witness against ignorantly repeating law reform’s past
errors, as tragedy or farce.
Quirk’s second reason for writing ‘the first comprehensive, empirically informed analysis of the
effects’ (p. 2) of curtailing the right of silence is more substantive and explicitly future-orientated. Her
central claim is that the impact of the 1994 Act has truly been profound and enduring, but this impact is
both subtle and not to be found in the process outcomes championed or feared by contemporary
reformers and critics. On closer examination, tangible effects may be discerned in both the pre-trial
and trial phases of criminal adjudication. In the police station, attaching forensic risks to silence has
altered the dynamics of custodial interrogation, because refusal to cooperate with the investigation was
one of the few bargaining chips that defence legal representatives could deploy to gain practical
advantages in this adversarial setting, including fuller disclosure of police evidence. This legislative
impact was tactical rather than doctrinal (which partly explains why practitioners’ perceptions at the

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The International Journal of Evidence & Proof 23(3)
time diverged from mine: it was...

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