The Right to Silence: A Review of the Current Debate*
| Date | 01 November 1990 |
| Published date | 01 November 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01837.x |
| Author | Steven Greer |
THE
MODERN LAW REVIEW
Volume
53
November
1990
No.
6
The Right to Silence:
A
Review
of
the Current Debate*
Steven Greer**
Introduction
Until earlier this year the present Government seemed determined to abolish the right
to silence in England and Wales sometime in late 1990 or in 1991.
It
was removed in
Northern Ireland in 1988’ but there have been no plans to interfere with it in Scotland
where various elements of the criminal justice system differ significantly from those to
be found in the rest of the United Kingdom.* In July 1989 a Home Office Working
Group made a series of recommendations on terms of reference which assumed that abolition
was necessary and desirable for England and Wales.3
However, the implementation of these proposals has since been knocked off course,
largely it seems by the reaction to the Working Group’s report and the recent miscarriage
of justice scandals. It would be premature, however, to declare the battle to retain the
right to silence won. Formidable pressure has been brought to bear to remove it especially
from the police. Even if the issue is laid to rest for the time being it may well be resurrected
at some not too distant point in the future.
At the heart of the debate lies a simple question: can
an
innocent person ever be justified
in not talking to the police if under suspicion for an offence, and/or refusing to give evidence
in court if brought to trial? In attempting to find an answer it is necessary to begin by
seeking to clarify what the right to silence is. Then the chronology of the public debate
must be surveyed and the arguments for and against abolition set out and weighed. The
following conclusion will then be drawn. The right to silence should not merely remain
a vital part of the criminal justice system of England and Wales; it should be strengthened.
*This article is based upon a paper presented to the conference of the Society for the Reform of the Criminal
Law:
Investigating crime and apprehending suspects: police powers and citizens
’
rights,
Sydney, Australia,
19-23 March 1989.
I
would like to acknowledge my gratitude to Chris Willmore for comments on an earlier
draft. Needless to say responsibility for the views expressed here remains entirely my own.
**Faculty of
Law,
University of Bristol.
1
Criminal Evidence (Northern Ireland) Order 1988.
For
further details
see
J. Jackson, ‘Recent Developments
in Criminal Evidence’ [1989]
40
NILQ 105 and ‘Recent Developments in Northern Ireland’ in
S.
Greer
and R. Morgan (eds),
The Right
to
Silence Debate: Proceedings
of
a Conference held
at
the University
of
Bristol
on
27
March
1990
(Bristol: Bristol Centre for Criminal Justice, 1990).
2 One important -difference is that Scots law protects the Crown from being ‘ambushed’ by unexpected
lines of defence which have not been made at an earlier judicial examination by a sheriff. If the accused
raises a defence at the trial which could have been given at the judicial examination this failure may be
the subject of comment by the judge and the prosecutor. The same holds true of answers to questions
at the trial which could have been but were not answered at the earlier examination. Significantly, silence
at the judicial examination can only be the subject of comment at the trial; it cannot supply corroboration.
(Criminal Justice (Scotland) Act 1980,
s
6; see also NLJ 28 October, 1988.)
3
Report
of
the Working Group
on
the Right
of
Silence
(London: Home Office, July 1989) paras
5
and
50.
The Modern Law Review
53:6
November 1990 0026-7961
709
irhe Modem Law Review
[Vol.
53
This is because its removal could increase the chances of innocent people being wrongly
convicted with no obvious gains for law enforcement and insufficient protection is currently
provided in order to avoid this risk. It should also be restored forthwith in Northern Ireland
where it was removed with unseemly despatch.
What
is
the Right
to
Silence?
The current public debate has not always been characterised by a clear conception of what
the right to silence is. Various definitions have been offered and the phrase ‘privilege
against self incrimination’ has sometimes been used as a synonym. The two terms are
not, however, equivalent.
A
suspect who remains silent in the police station and/or the
courtroom may well be motivated by a desire to avoid incriminating himself. But there
can also be other motives, for example, the desire to avoid incriminating others. It should
not go unnoticed either that ‘privilege’ and ‘right’ are both loaded terms. ‘Privilege’ implies
special treatment accorded as a favour or concession, whereas ‘right’ denotes an interest
protected as an expression of basic values. The view taken here, for reasons which will
become apparent, is that in an accusatorial system silence should be regarded as a right
rather than a privilege.
To say that there is a right to silence in England and Wales does not merely mean that
generally no legal obligation is imposed upon citizens to talk to the police or to give evidence
in court. It implies in addition that
no
disadvantages should attach to a defendant’s refusal
to co-operate with the police or to testify. The ‘right to silence,’ therefore, refers to the
common law principle that normally tribunals of fact (juries and magistrates) should not
be invited or encouraged to conclude, either by judges or prosecutors, that a defendant
is guilty merely because he has refused to respond to allegations, particularly from the
police, or has refused to testify in court in his own defence. This has been justified
on
the grounds that the prejudicial effect of such invitations is likely to outweigh the probative
value of the silence itself. Any moves, like those currently under consideration, which
would permit prosecutors to invite tribunals of fact to draw such inferences, and which
would extend the boundaries of judicial comment would therefore amount to the
abolition
of the right to silence and not simply its curtailment or restriction as some have argued.
The origins of the right to silence are unclear. It was not until the end of the nineteenth
century that defendants were allowed to testify in their own defen~e.~ Silence, at least
in court, was therefore originally an obligation rather than a right. MacNair identifies
three theories concerning the origin of the ‘privilege against self incrimination.
’5
First,
Wigmore regarded it as having crept into the common law almost by accident in the mid-
seventeenth century following the collapse of the political courts of Star Chamber and
Commission which possessed the power to compel witnesses to testify under oath.6 Once
established, the right
of
an accused to remain silent in criminal trials was subsequently
extended to witnesses and to allegations of crime in civil litigation. Wood and Crawford
argue that the demise of Star Chamber and Commission can be attributed to the widespread
hostility aroused by compulsory testimony upon oath. 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.’ The
second theory, offered by Maguirea and Levy,9 traces the ‘privilege against self incrimi-
4
Criminal Evidence Act 1898,
s
1.
5
M.R.T. McNair, ‘The
Early
Development
of
the Privilege against Self-Incrimination’ [I9901 OJLS
66.
6 J.H. Wigmore,
A
Treari.se
on
Evidence
(Boston: The McNaughton Revision, Little Brown,
1960)
Vol
VIII,
7
J.
Wood and A. Crawford,
The
Right
of
Silence: The
case
for
retention
(London: The Civil Liberties
8
M.H. Maguire, ‘The Attack of the Common Lawyers
on
the Oath
Ex
Officio’ in Wittke (ed),
Essays
$2250.
Trust, 1989)
p
5.
in History
and
Political
Thought in Honour
of
C.
H. Mcllwaine
(Cambridge,
Mass:
Harvard, 1936).
710
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