Critically consider the extent that 'right to silence' and the privilege against self-incrimination continue to be a part of the English criminal justice system

Authors Avatar

Critically consider the extent that 'right to silence' and the privilege against self-incrimination continue to be a part of the English criminal justice system.

This essay will first explain the meaning of the right to silence and the privilege against self-incrimination and their origins in the United Kingdom. It will then discuss the extent that they continue to be part of the English criminal justice system by focusing on the impact of the Criminal Justice and Public Order Act 1994.

The Right to Remain Silent and the Privilege against Self-incrimination

The right to silence and the privilege against self-incrimination are often linked together when discussed by legal scholars. However, there is indeed a distinction between them.

The right to silence refers to the ‘immunity of an accused person from having adverse inferences drawn from failure to answer questions’. There are three stages in the criminal process when considering the right to silence. They are to remain silent prior to arrest, for instance, not to speak when stopped by a constable on the street; to remain silent when under arrest, which is not to answer police officers’ questions while in custody; and to remain silent at trial, not to give evidence or answer questions.

The privilege against self-incrimination is the freedom of an individual ‘not to divulge information which might be incriminating’ and ‘the right that no adverse consequences should ensue as a result of exercising that choice’.

In Rice v Connolly, the court suggests that the right to silence is recognised in domestic law in which the accused has no legal duty to answer questions put by the police.

According to the European Court of Human Rights in Murray v United Kingdom, the right to silence of the accused person was not absolute in the sense that no adverse inferences could ever be drawn at trial from that silence. 

‘The Court makes clear that although not specifically mentioned, the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of Article 6. These standards are not absolute. Therefore whilst it would be incompatible with Article 6 to base a conviction solely or mainly on the accused's silence or on a refusal to answer questions or to give evidence himself, where a situation clearly calls for an explanation the accused's silence can be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution. All the circumstances of the case have to be taken into consideration.’

Adverse Inferences Drawn If Remained Silent

Before the Criminal Justice and Public Order Act 1994 was passed, there have long been debates over whether it is permissible to draw inferences from silence adverse to an accused. The government in the late 1980s has always wanted to curtail the right to silence. The justifications are that ‘innocent people have nothing to fear from telling the truth’ and ‘the statutory rights which suspects were given under PACE tipped the balance too far in the suspect’s favour’, therefore the right to silence is no longer required. 

Join now!

The Criminal Justice and Public Order Act 1994 was hence after going back and forth for quite a long while. Its enforcement was very important in this context as it allowed adverse inferences to be drawn from silence in certain circumstances, which means that the right to silence was significantly restricted since then. Although the right to silence was not completely abolished, it is obvious that it was undermined under sections 34-37 of the Act.

Criminal Justice and Public Order Act 1994

Sections 34 and 35 of the Criminal Justice and Public Order Act 1994 deal with silence under ...

This is a preview of the whole essay