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Title: The right of silence.

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Introduction

Title: The right of silence. The accused is not compellable as a witness in his own defence but a decision not to testify is usually regarded as tactically astute. In certain situations, s35 Criminal Justice and Public Order Act 1994 permits the jury to draw "such interference as appear proper" from the accused's failure to give evidence or his refusal to answer to a particular question put to him. Despite the fundamental nature of the rights involved in silence, very great public dissatisfaction arose at the ease with which many defendants appeared able to evade justice by resorting to silence in the knowledge that this could do their case no harm and might well allow their very silence as a right to inject reasonable doubt into the trial. ...read more.

Middle

The fact that inferences are drawn from his accuse does nothing but leave the evidence of the prosecution unchallenged. The jury may presume the evidence to be true if unchallenged (s35 1994 act). The burden of proof is not affected and only if they are satisfied that it is beyond reasonable doubt would they convict. S38(3) states that conviction of the accused could not be base solely on the inferences drawn under s35. Instead the basis of such conviction should come from the fact that the prosecution had presented a strong case that persuaded that jury that the accused is guilty beyond reasonable doubt. In Murray v DPP, in the light of the culmulative strength of the situation and forensic evidence against him, it is common sense to infer that the accused is guilty of the offence. ...read more.

Conclusion

It would be folly to pretend that the legal right to silence has not been greatly reduced and weakened by the cumulative effect of these changes but it should be also remembered that the evidential effect of silence has long shown the risks attendant on maintaining silence where some answer might be expected. No compulsion had crept in here at all. There are no echoes of the Court of Star Chamber; all that has happened is the recognition of drawing logical inferences where it is proper to do so and even then, no conviction can follow on the inferences alone (s38(3) CJPOA 1994). The principle underlying the right to silence never was based as much on a privilege against self- incrimination as on a protection against compulsion of accused persons. Instead, it serves to underline and emphasise a common- sense process which juries have applied for decades and adds another layer of bureaucracy to an already overly bureaucratic system. ...read more.

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