Title: The right of silence.

The fundamental principle as stated in R v Martinez- Tobon is that the silence of the accused adds nothing to the prosecution case nor does it takes anything away. The accused silence is not itself evidence. He could only be convicted on the evidence which is presented to the jury. 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. Whether it is an appropriate situation would depend on the facts of the case. The ECrtHR had decided that the drawing of inferences was not in breach of art 6.

R v Cowan has provided safeguards for the accused on the drawing of appropriate inferences under s35 and the width of the judicial discretion whether to direct or not against drawing inferences seems very considerate. The judge should inform the jury that the accused has a right to choose to remain silent. The jury may choose to draw inferences or may not as they see fit. However, his guilt cannot be inferred on the basis of silence alone. The prosecution muse first establish that the accused have a case to answer. The judge does not have so much discretion as to the matters that he must direct the jury about but a much greater responsibility falls upon the judge since there changes.

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.