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Two of the keystones of our right to a fair trial, the right to silence and the presumption of innocence, have been compromised in recent years; this compromise has however been necessary in the interests of justice.(TM) Discuss.

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‘Two of the keystones of our right to a fair trial, the right to silence and the presumption of innocence, have been compromised in recent years; this compromise has however been necessary in the interests of justice.’ Discuss.

Every person has the right to a fair trial both in civil and in criminal cases, and the effective protection of all human rights very much depends on the practical availability at all times of access to competent, independent and impartial courts of law which can, and will, administer justice fairly. Under Art.6 (2) of the European Convention on Human Rights, it states that ‘everyone charged with a criminal offence shall be presumed innocent until proven guilty’, therefore the burden is on the prosecution to prove the case. This means that it must prove both the required actus reus and the required mens rea. The prosecution may also have to disprove a defence, which the defendant raises as was confirmed in the case of Woolington[1] where the judge at the trail told the jury that the prosecution had to prove beyond reasonable doubt that the defendant killed his wife. However, for certain defences, the reverse onus places the burden of proof on the defendant[2]. The second keystone of our right to a fair trial is the right to remain silent. Murphy (2005) notes that the right of silence has two aspects, the right not to be compelled to give evidence, and the right not to make incriminating statements when confronted with an alleged offence[3].

This essay will explore the fundamental keystones of our right to a fair trail further, whilst embracing the concept that compromises to this have been necessary in the interests of justice. This will be discussed in light of the Criminal Evidence (NI) Order 1988, the Criminal Justice and Public Order Act 1994, the Criminal Justice (Terrorism and Conspiracy) Act 1998, the Terrorism Act 2001 and the Human Rights Act 1998 thus concluding if the compromises are in fact necessary in the interests of justice.

The right to silence in court forms a guarantor of the presumption of innocence in that it forces the burden of proof fully onto the prosecution to base its case on solid evidence rather than to either trick, intimidate or confuse the accused into incriminating themselves through oppression[4] or making contradictory statements that undermine their credibility[5]. The right to silence in custody also forms a guarantor of the presumption of innocence by forcing the police to find solid evidence linking the accused to the crime.

However, since the 1980s, the right of silence has been compromised in the British legal system. For example, the Criminal Justice Act 1987 created the Serious Fraud Office (SFO) and gave it powers to question those under investigation and anyone reasonably believed to hold relevant information[6]. If such a person fails to answer the questions to the best of their ability, they commit an offence. More recently, s.35 of the Criminal Justice and Public Order Act 1994 allows the court or jury to draw whatever inferences they see fit from a suspect's silence both in custody and in court. Exercising this right to silence, can consequently risks harming the accuser’s defence should the case go to court[7].

 The right to silence and the presumption of innocence should not only protect the accused but also help ensure that cases are investigated thoroughly and prosecuted on the basis of presenting evidence rather than a prima facie case. It follows that removing it or weakening it risks lowering the standards of evidence in prosecutions and thus increases not only the risk of the innocent being convicted but also the guilty either being acquitted or not being brought to court in the first place.

Keane (2006) and Allen (2006) notes that defenders of the Criminal Justice and Public Order Act 1994 have argued that they were not removing the right to silence, but merely allowing the court or the jury to make what they will of the silence, to draw their own inferences from it[8]. They argued that criminals can exploit the right to silence in order to get away with their crimes and that the drawing of inferences thus would help counteract this without the removal of the right to silence and that these compromises would be in the interests of justice. However, Critic’s such as Ashworth (2006) have argued that the drawing of inferences from silence entails faulty reasoning and seriously weakens the right to silence. An innocent defendant may fail to answer questions in custody or refuse to testify in court for numerous reasons. Mulcahy (2006) notes that this is predominantly relevant to Northern Ireland in light of the past troubles, a defendant may regard the police as corrupt and that answering the questions would give the police information that can be used against them[9]. They may believe that if they answer the questions, they or someone they care about might be put in danger from the people who did commit the crime[10]. In short, drawing inferences from a defendant's silence in custody or in court involves speculation on the motives behind their silence, but not solid reasoning that their silence indicates guilt. However, this was not the case in Murray v DPP[11], Keane (2006:439) writes “a decision under the equivalent provision in the Criminal Evidence (NI) Order 1988,[12] M was convicted of attempted murder and possession of a firearm with intent to endanger life. There was evidence to link the accused with the attack, but he gave no evidence at the trial. The trial judge said that it was ‘only common sense to infer that he is not prepared to assert his innocence on oath because that is not the case”. This was a violation of the presumption of innocence under Art 6(2) of the ECHR, “if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law”, and it is sufficient, “even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty”[13]. The trial judge in the case asserted guilt before the defendant had been proven guilty before a court of law. The presumption of innocence generally ceases upon a courts finding of guilt. However, it is when this point is reached in different member states that the European Commission of Brussels is researching. In some states, this could be after a first instance trial or when a final appeal has failed.

The drawing of inferences has a direct impact on the right to silence itself. The police inform the suspect if they fail to mention[14], when questioned, something they later rely on in court, it may harm your defence[15]. Thus they are under pressure to answer the police's questions to the best of their ability since failing to do so risks losing a case against them in court and thus being punished. Effectively, a real threat of legal sanction exists for the defendant’s silence both in custody and in court. However, even if an inference is drawn, the silence on its own is not enough for conviction. This was established in R v Condron[16], where the appellants were advised by their solicitor to say nothing. The trial judge gave the jury the option of drawing an adverse inference from this silence and convicting the defendant. The Court of Appeal made it clear that the prosecution must still have good independent evidence of guilt – the inference was not enough on its own for a conviction. The Court of Appeal then upheld the conviction, having noted there was indeed plenty of other evidence of the appellant dealing in drugs. However, the final twist, which makes this ruling very important, is that the EctHR ruled the trial was flawed as Art 6 was breached and the conviction was wrong for this reason alone, regardless of the other evidence.

Legislation has been adapted, changed and created in the interests of justice and public safety. Compromises to a fair trial regarding the presumption of innocence and the right of silence may be seen in the Criminal Justice (Terrorism and Conspiracy) Act 1998 and the Terrorism Act 2000. According to Dickson (2005), the Criminal Justice (Terrorism and Conspiracy) Act 1998 was rushed through Parliament, further amending the current Northern Ireland (Emergency Provisions) Acts (EPA) and the Prevention of Terrorism (Temporary Provisions) Acts (PTA) to make it easier to draw inferences from an accused persons silence. The Terrorism Act 2000 (TACT 2000) replaced the current EPA and the PTA and now applies throughout the United Kingdom. This Act challenges the centuries old principle of a defendant being considered innocent until proven guilty as it places a reverse onus provision on the defendant. A review of this evidence by Salako (2006)[17] suggests that crimes of strict liability violate the right to be presumed innocent   because imposing the onus on the accused has two undesirable consequences. First, the accused is burdened with a high probative burden, which sometimes carries with it a high potential for compromising related procedural rights such as the privilege against self-incrimination and the right to silence. Secondly, it allows the conviction of the accused in circumstances where there exists a reasonable doubt about his guilt. The ECtHR held that, although not specifically mentioned in the ECHR, the privilege against self-incrimination is a generally recognised international standard which lies “at the heart of the notion of a fair procedure”.[18]

In addition, Ashworth (2006)[19] argues that the presumption of innocence comes under threat in relation to ASBO’s.  A key element of the ASBO was that it was designed in order to bypass the criminal process and thereby to evade the presumption of innocence and all the other rights that arise specifically in criminal proceedings. A major reason for using a civil order imposed in civil proceedings, with civil rules of evidence, was to avoid the need for witnesses to attend and give evidence, as required in criminal proceedings by the presumption of innocence and related rights. Under the Convention, this legislative strategy can be attacked. One line of attack is to argue that, even though the proceedings are civil, the standard of proof required should be as high as the criminal standard of 'beyond reasonable doubt', because the consequences of the order and its breach are potentially severe.  If the order is breached, this is a criminal offence with up to a maximum penalty of five years' imprisonment being imposed.

The governments of many countries are confronted with threats of terrorism and serious crime and naturally wish to take-or, to be seen to be taking-steps to reduce the danger and increase public protection. This can be seen within recent and new legislation introduced[20]. In a context such as this, human or constitutional rights are sometimes not mentioned at all or regarded as after-thoughts or minor inconveniences. Claims by the government on their strategy’s for extra effectiveness within new legislation need to be scrutinised with care, and then related to the foundations of the presumption of innocence and the justifications for attempting to override, sideline or ignore it. Arguments based on public protection or the reduction of risk, for example, should not be determinative if founded solely on the seriousness of the offence. The EctHR held that the presumption of innocence and the right of silence is a generally recognized international standard, which lies “at the heart of the notion of a fair procedure”.[21] Security and public order cannot justify the suppression of these rights.[22] Weakening the notion of our right of silence and the presumption of innocence cannot be made in the interests of justice without compromising our right to a fair trail. It protects the accused against improper compulsion by the authorities, thus reducing the risk of miscarriages of justice.




      Anderson, T. 2005. Analysis of Evidence. Cambridge University Press.      

     Allen, C. 2006. Practical Guide to Evidence. Cavendish Publishing.

Dickson, B. 2005. The Legal System of Northern Ireland. SLS Publications (NI).

Keane, A. 2006. The Modern Law of Evidence. Oxford University Press.

Martin, S and Storey, T. (eds.) 2004. Unlocking Criminal Law. Hodder Arnold.

Mulcahy, A. 2006. Policing Northern Ireland: Conflict, Legitimacy and Reform. Willan Publishing.

Murphy, P. 2005. Murphy on Evidence. Oxford University Press.


Ashworth, A. 2006 . ‘Four threats to the presumption of innocence’ The International Journal of Evidence and Proof. Volume 4:241.

Cooper, S. 2006. ‘Legal advice and Pre-trial silence- unreasonable developments’ The International Journal of Evidence and Proof. Volume 10:60.

Easton, S. 1998. ‘Legal advice, common sense and the right to silence’ International Journal of Evidence and Proof. Volume 2:107.

Salako, Solomon E. 2006. ‘Strict Criminal Liability: a violation of the convention’ Journal of Criminal Law. Volume 70.


Green Paper. 2006. ‘The Presumption of Innocence’ Commission of the European Communities. Brussels

[1]Woolington v DPP [1935] AC 462

[2]R v Lambert [2001] 3 All ER 577

[3] Lord Mustill identified six apparently discrete rights, see Director of Serious Fraud Office, ex parte Smith [1993] AC 1

[4]R v Paris and Others (1993) 97 Cr App R99

[5]Fulling [1987] QB 426

[6]Smith V Director of Serious Fraud Office (1992) 3 All ER 456

[7] Criminal Evidence (NI) Order 1988, art.3 and Criminal Justice and Public Order Act 1994, s.34. These laws allow inferences to be drawn only if the accused fails to mention a material fact, which s/he later wishes to rely on in his/her defence.

[8]R v Cowan [1995] 4 All ER 939.

[9] E.g. in the case of the UDR Four, three of whom had their convictions quashed by the Court of Appeal in 1992. The fourth defendants conviction was confirmed in R v Latimer [2004] NIJB 142.

[10]Mountford [1999] Crim LR 575

[11] (1994) 99 Cr App R 369.

[12] Art 4, SI 1988/1987 (NI 120).

[13] ECHR, Allenet de Ribemonty v. France,  Series A, No. 308, para 35

[14]R v Turner [2003] EWCA Crim 3108.

[15]R v Webber [2004] UKHL 1.

[16] R v Condron [1997] 1 WLR 827.

[17] Salako, Solomon E. 2006 ‘Strict Criminal Liability: a violation of the convention’.

[18] Green Paper – The Presumption of Innocence 2006:7.

[19] Ashworth, Andrew. 2006 ‘Four threats to the presumption of innocence’.

[20] The Terrorism Act 2000, also the Prevention of Terrorism Act 2005.

[21] Green Paper. The Presumption of Innocence. 2006:Pg, 7.

[22]Heaney and McGuiness V. Ireland No. 34720/97.

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