Essay On The Right To Silence: A Historical And Critical Analysis
The right to silence, also known as the privilege against self-incrimination refers to two distinct but deeply related liberties. The privilege against self-incrimination concerns the general principle of English law that a person is innocent until proven guilty and that it is the duty of the prosecution to prove their case against any person they suspect of committing a crime. Accordingly, the suspect has no obligation to voluntarily provide the prosecution with evidence that will or might be self-incriminating or assist in their prosecution. The right to silence, on the other hand, not only allows a person to refuse to speak or answer any questions posed to them by state but also not to have that silence used against them as a manifestation of guilt or involvement in a criminal activity (Levy, 1999).
The privilege against self-incrimination has existed at common law at least since the Middle Ages (Levy, 1999). At that time, there were two competing systems of criminal procedure vying for dominance namely, the “accusatorial common law courts” and the inquisitorial ecclesiastical Courts of Star Chamber (O’Reilly, 1994). Under the procedure of the Star Courts, a person suspected by the state of criminal activity were arrested without notice or information about the charge and forced to take an oath of honesty in answering truly all questions that may be put to him on any subject or providing evidence of their actions (O’Reilly, 1994). Any answers given by the suspect would then form the basis of the state’s case against the suspect and used against them at trial. Failure to take the oath or answer questions was often seen as an admission of guilt, lead to the suspect being tortured or imprisoned until the agreed to speak. The Star Chamber eventually became one of the main institutions used by the British monarchy (the Crown) to establish and enforce its political and religious policies as well as stifle dissent (Levy, 1999).
At about the same time, the common law courts began instituting provisions that brought its procedures more into line with the principle as set forth by the Magna Carta in 1215, namely the right to silence. It developed as a response to the evolving use of two juries in the courts. One jury would first make a determination whether a charge against the suspect were worthy of a trial. If so, then a second jury was empaneled to decide whether the suspect was guilty of the crime charged. Under the procedures of the courts, a suspect under consideration by the first jury had the right to refuse taking an oath of honesty or answering questions that might incriminate him in trial if the jury found him to be “triable” (O’Reilly, 1994). At trial, defendants were not permitted to testify because since they were “interested parties” their testimony was considered unreliable (O’Reilly, 1994). Indeed, the right of a defendant to testify at trial did not occur until 1898.
Opposition to the Star Chamber and the oath procedures steadily grew through the Middle Ages with its opponents increasingly pointing to the common law courts and the its use of the privilege against self-incrimination as an alternative. To be sure, by the early 1500s, there was a growing number or lawyers, legal scholars and members of Parliament that thought the Star Courts’ oath procedures were illegal because they violated a person’s conscience, violated fundamental principles of criminal procedure by subjecting suspects to punishment without first being charged or knowing the charges against him, and “put the innocent at risk more than the guilty” (O’Reilly, 1994). Eventually, the opposition to the Star Chamber and oath procedures and the support of common law courts and privilege against self-incrimination became a battle of whether power in criminal matters resided with the Crown or the Parliament. This was illustrated in the 1637 Lilburn case. John Lilburn was a political activist who was forced to flee England to Holland in 1636. Upon his return from Holland, Lilburn was accused of circulating religious books deemed illegal by the Crown. Accordingly, Lilburn was arrested and brought before the Star Chamber to answer for his charges. After answering a number of questions, Lilburn eventually refused to answer any more until he was informed of the charges against him. This created a dilemma for the Star Chamber, in that without any information at all, there was literally no way for it to proceed with its case (Riebli, 2002). His refusal led to the Star Court fining him and sentencing to a punishment that included being publically whipped and imprisoned. In 1641, the Parliament held that Lilburn’s trial and sentencing was illegal. Lilburn was set free and reimbursed for the fine. In vacating the case, Parliament stated that immunity of self-incrimination was the “law of the land” and an integral part of the due process guarantees of the common law (Riebli, 2002). That same year, Parliament also abolished the Star Chamber with one of the reason being that its cruel treatment of Lilburn. Taken together, Lilburn’s acquittal and the abolition of the Star Chamber permanently established not only the privilege against self-incrimination but also, as demonstrated by Lilburn, the right to silence and refusing to answer any question that was asked of him. In 1898, with the allowance of defendant to testify at trial, Parliament also established the principle that silence during investigation or at trial, in and of itself” was not an admission of guilt but rather ingredient of the criminal justice system which holds that the burden is on the state to prove its accusations (Cape, 2006).
Despite the evolution of these rights to govern criminal procedure at court, initially they were not formally imposed on police actions when the criminal investigatory powers of the courts passed on to the police. Instead, any questions of their abuse were resolved on a case-by-case basis in which it was up to the suspect to bring the matter to the attention of the courts (St. Johnson, 1966). This changed in 1912 with the adoption of the Judges’ Rules which provided guidance for police when interrogating a suspect (St. Johnson, 1966). One of the main attributed of the Judges’ Rules was the codification of the right to silence as it evolved in the common law. To be sure, under the Judges’ Rules, the right to silence included the three separate privileges as mentioned above namely, immunity for providing information that is self-incriminating; immunity from answering any question at all; immunity from having one’s silence be used against them; and finally a requirement that the suspect be “cautioned” or informed of his right to silence prior to interrogation (St. Johnston, 1966). This was deemed by the courts as providing ample protection for suspect from providing information about criminal activity that the state did not know about prior to interrogation but once revealed by the suspect could be used against them.
Over the years, however, while the first two immunities of a right to silence have been upheld, time after time, the last immunity, that no “adverse inferences” may be drawn from a suspect’s silence, has been increasingly been eroded. This is best illustrated by the 1994 passage of the Criminal Justice and Public Order Act (CJPOA). Under the CJPOA, both judges and juries are permitted, in certain circumstances, to draw “adverse inferences” from the silence of a suspect or their failure to inform the police of information that they rely on at trial (CJPOA, 1994). In order for an “adverse inference” to be drawn, a number of conditions must be satisfied including: the fact a suspect relies on at trial was not mentioned during police interrogation that included a caution; failure to mention the fact occurred prior to being charged; in failing to mention the fact, the suspect, at the time of interrogation could reasonably have expected that they would later be relying on that fact at trial; and the question that elicited the failure to mention was made in an effort by the police to determine if an crime had occurred or who the culprit for a crime was (R v Argent, 1997). In addition, in order of the adverse inferences to be available, the suspect’s silence must have been made in an interrogation at an authorized place of detention such as a police station and that the suspect was also informed of his right to consult an attorney (R v Argent, 1997). If the above mentioned conditions are satisfied and the suspect remains silent or later relies on a fact that he failed to mention during interrogation, the CJPOA allows a judge inform a jury that they may consider the information presented by the defendant at trial may not be as convincing as if he informed to police to the same information at interrogation. Furthermore, the CJPOA allows juries to determine whether the suspect’s silence or failure to mention a fact at interrogation was reasonable and that if the suspect’s actions were deemed unreasonable, they can draw an “adverse influence from it (CJPOA, 1994).
While the right to silence has been a fundamental element of the British criminal justice system, it is far less comprehensive of the right commonly believed available to suspects during a police interrogation. While suspect can and should refuse to answer questions that might implicate them in a criminal activity, they must also understand that the right to say nothing at all has limits and that adverse inferences may be draw from it. This, in essence, is a reminder that the procedures of the Star Chamber which required a confession or held a suspect’s silence against them continues to play a role in the mechanics of the criminal justice system.
Cape, E. (2006). Police Station Advice: Advising on Silence. Retrieved on January 9, 2015, from https://webcache.googleusercontent.com/search?q=cache:NTEfnt5XwzAJ:www.legalaidreform.org/national-legal-aid-systems/national-legal-aid-systems-by-country/item/download/605_ff8fd5e4c4ce66dffe8ee2afa896d43b+&cd=1&hl=en&ct=clnk
Criminal Justice and Public Order Act 1994. Retrieved on January 9, 2015, from http://www.legislation.gov.uk/ukpga/1994/33/contents
Levy, L.W. (1999). Origins of the Fifth Amendment: The Right against Self-Incrimination. Lanham, MD: Ivan R Dee Publisher.
O’Reilly, G.W. (1994). England Limits the Right to Silence and Moves towards an Inquisitorial System of Justice. Retrieved on January 9, 2015, from http:// http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6816&context=jclc
R v Argent  2 Cr App R 27. Retrieved on January 9, 2015, from http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Crim/1996/1728.html&query=argent&method=boolean
Reibli, F. (2002). The Spectre of Star Chamber: The Role of an Ancient English Tribunal in the Supreme Court’s Self-Incrimination Jurisprudence. Retrieved on January 9, 2015, from http://www.hastingsconlawquarterly.org/archives/V29/Riebli.pdf
St. Johnston, T.E. (1966). Judges’ Rule and Police Interrogation in England Today. Retrieved on January 9, 2015, from http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=5358&context=jclc
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