The right to silence: Inferences and interference
| Date | 01 April 2014 |
| DOI | 10.1177/0004865813497732 |
| Published date | 01 April 2014 |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
2014, Vol. 47(1) 59–80
!The Author(s) 2013
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DOI: 10.1177/0004865813497732
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Article
The right to silence: Inferences
and interference
Yvonne Marie Daly
Dublin City University, Ireland
Abstract
The right to silence, or the privilege against self-incrimination, has long been recognised as an
important procedural protection for the accused in the criminal process. The legislature of
New South Wales, however, has introduced legislation to curtail that right by allowing for
adverse inferences to be drawn at trial from the pre-trial failure of the accused to mention a
fact later relied on in his defence. This article considers this legislative change in comparative
context, drawing on the experience of interference with the right to silence in the Republic of
Ireland, in England and Wales and in the judgments of the European Court of Human Rights.
Particular attention is paid to the interaction between the right to silence and the right to
legal advice, including the issues of duty solicitor schemes, legal professional privilege and
suspect reliance on advice to remain silent.
Keywords
duty solicitor scheme, fair trial, legal professional privilege, privilege against self-incrimination,
right to legal advice, right to silence
Introduction
In August 2012, the government of New South Wales (NSW) announced plans to bring
forward legislation which would curtail the right to silence of a suspect in a criminal
case, while under police questioning, by allowing for an adverse inference to be drawn
from such silence at subsequent trial (O’Farrell, 2012). The Evidence Amendment
(Evidence of Silence) Act 2013, which gives effect to this proposal, provides for the
insertion of s. 89A into the Evidence Act 1995 in the following terms:
(1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences
may be drawn as appear proper from evidence that, during official questioning in
relation to the offence, the defendant failed or refused to mention a fact:
(a) that the defendant could reasonably have been expected to mention in the circum-
stances existing at the time, and
Corresponding author:
Yvonne Marie Daly, BCL, PhD, Socio-Legal Research Centre, School of Law and Government, Dublin City University,
Glasnevin, Dublin 9, Ireland.
Email: yvonne.daly@dcu.ie
(b) that is relied on in his or her defence in that proceeding.
This Act was passed by the Parliament of NSW and assented to on 25 March 2013,
though it is yet to be proclaimed. Its content goes against the recommendations of the
NSW Law Reform Commission, contained in their 2000 report (NSW Law Reform
Commission, 2000: 2.138), and, outside of the government and the police, it seems
that most significant participants in the criminal process were opposed to the introduc-
tion of s. 89A.
1
While reference was made in a number of submissions on the original Bill
(the Evidence Amendment (Evidence of Silence) Bill 2012) and in the Law Reform
Commission report, to similar provisions introduced in England and Wales and in
Singapore, there has been little reference to restrictions on the right to silence in the
Republic of Ireland (hereinafter referred to as Ireland).
2
Ireland, an oft-forgotten (or,
perhaps, ignored) common law jurisdiction, is a good comparator to NSW on this issue,
not least because of the absence in both jurisdictions of duty solicitor schemes for the
provision of legal advice to suspects. Knowledge of the experience of interferences with
the pre-trial right to silence in Ireland might be beneficial to lawmakers and other
interested parties, not only in NSW but in any jurisdiction considering interference
with the right to silence. In New Zealand, for example, the right to silence
3
has recently
been compromised under the examination order provisions of the Search and
Surveillance Act 2012.
This article outlines the manner in which restrictions on the pre-trial right to silence
came to have a place in Irish law, making comparative comment on the newly-created s.
89A in NSW. The article highlights the initial introduction of an inference-drawing
provision similar to that now in existence under s. 89A and the subsequent acceptance
of inference-drawing provisions of a more expansive nature in later years. Along with the
Irish experience, reference is made throughout to issues arising under s. 34 of the
Criminal Justice and Public Order Act 1994 in England and Wales, and relevant deci-
sions of the European Court of Human Rights, particularly in the context of the inter-
action between the right to silence and the right to legal advice.
The right to silence: A fundamental right
The right to silence, often interchangeably or alternatively referred to as the ‘privilege
against self-incrimination’,
4
may be thought to include a number of different protections,
or immunities,
5
but in basic terms, in the context of criminal proceedings, it is the
entitlement of a suspect to refuse to answer questions put to him/her or to provide
any information to the prosecution (McGrath, 2005: 11.04). It applies both at trial,
where it operates as a right to refuse to take the stand and give evidence, and pre-
trial, whereby a suspect cannot be compelled to speak against his/her own interest
under official questioning by the police.
6
Over a number of centuries, the right to silence became well established in most
common law jurisdictions
7
and it is also now specifically set out within a number of
international agreements (e.g. International Covenant on Civil and Political Rights 1966:
Art. 14; Statute of the International Tribunal for Rwanda 1994: Art. 20; Statute of the
International Tribunal for the Former Yugoslavia 1993: Art. 21; Rome Statute of the
International Criminal Court 1998: Art. 55; European Convention on Human Rights
60 Australian & New Zealand Journal of Criminology 47(1)
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