Right to Silence

Right to Silence

1. Dates back to 17th Century

   • Star Chamber
     • RTS overplayed

2. Legal Right

   • no man bound to accuse himself
   • law will develop

3. forcing suspect to speak up is unlawful

   • but has consequences

4. Codified in judges rules 1912

   • included in caution from 1978
     • you have the right to remain silent but it may harm your defence if anything you do not mention when questioned something you later rely on in court
   • but rights had already been well established by case law

5. suspect does not have to prove innocence

   • burden of proof lies with prosecution
     • R v McCann
       • using right of silence proves guilt
       • speaking up is practice of innocent

6. refers to group of immunities from answering questions

   • R v Director of Serious Fraud Office, Ex parte Smith

7. not enshrined in ECHR but Article 8 protects privacy and Art 6 protects right to fair trial

   • Murray v UK
   • Allen v UK

8. three main stages in which silence may be relevant

   • arrest & questioning
     • on the street when suspicion arises
   • Trial Preparation
   • Trial

9. criminal law revision committee June 1972

   • silence is evidence of guilt

10. Against RTS

    • innocent would want to talk
    • tool of professional criminals
    • the vulnerable talk
    • hampers police and crown
    • frustrating for all involved
    • pressure to get confessions would reduce if silence could be used as evidence