Right To Silence in England and Wales - History

History

In England and Wales, the right of suspects to refuse to answer questions during their actual trial (the "right to silence", or the right to remain silent as it is now known) was well established at common law from the 17th century. The defendant was considered "incompetent" to give evidence and attempts to force defendants to provide answers, such as the efforts of the Star Chamber, were judged unlawful. Being unable to speak at their own trial, the practice of defendants giving an unsworn statement was introduced and was recognised in law in 1883. Defendants testifying in their own defence was also introduced in the 1880s (and extended to all offences by 1898) although the right to silence was clearly protected. As the right to testify was extended the possibility of unsworn statements was withdrawn.

However the right of suspects to refuse to answer questions before trial was not codified as Judges' Rules until 1912. Prior to 1912, while torture had been banned, the mistreatment of silent suspects to induce a confession was common and the refusal to answer questions was used as evidence against them. The intermingling of the investigative and judicial roles was not formally divided until 1848, when the interrogation of suspects was made solely a police matter, with the establishment of the modern police forces.

Defendants giving evidence in court became commonplace to such an extent that by 1957, it was actually a shock when a defendant did not give evidence. When suspected serial killer John Bodkin Adams decided, on the advice of his lawyer, not to give evidence — the prosecution, the gallery and even the judge were surprised. In the view of Melford Stevenson, junior counsel in the prosecution (and later a prominent judge), speaking in the early 1980s: "It should be possible for the prosecution to directly examine an accused It was a clear example of the privilege of silence having enabled a guilty man to escape."

The Judges' Rules, with the inclusion of a caution on arrest of the right to silence, were not taken in by the government until 1978. However the rights were already well established by case law as was the necessity of no adverse comments, the principle being that the defendant does not have to prove his innocence — the burden of proof rests on the prosecution.

However the right to remain silent "does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance." Lord Mustill identified six rights contained within the umbrella term:

1. A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
2. A general immunity... from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
3. A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
4. A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
5. A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
6. A specific immunity... possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.

There were a number of projects to modify the law, such as the 1972 Criminal Law Revision Committee. The committee recommended that inferences should be drawn from silence, but the committee report was strongly opposed. Certain changes were introduced in 1984, deriving from the Royal Commission on Criminal Procedure report of 1981; these introduced a right to have a legal representative during police interrogation and improved access to legal advice.

The right to silence during questioning and trial was changed substantially in the 1990s. The right had already been reduced for those accused of terrorist offences, or questioned by the Serious Fraud Office or the Royal Ulster Constabulary, but in 1994 the Criminal Justice and Public Order Act modified the right to silence for any person under police questioning in England and Wales. Immediately previous to the Act, the caution issued by the police varied from force to force, but was along the lines of:

"You do not have to say anything but anything you do say will be taken down and may be given in evidence."

The 1994 Act modified this to be:

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

This is similar to the right to silence clause in the Miranda Warning in the US.

The new Act was based on the 1972 Criminal Law Revision Committee report and the Criminal Evidence (Northern Ireland) Order 1988. It rejected the reports of the 1991 Royal Commission on Criminal Justice and the Working Group on the right to silence. The supporters of the proposed Act argued that the existing law was being exploited by 'professional' criminals, while innocent people would rarely exercise their right. Changing the law would improve police investigations and adequate safeguards existed to prevent police abuse. Opponents claimed that innocent people may reasonably remain silent for many reasons, and that changing the law would introduce an element of compulsion and was in clear conflict with the existing core concepts of the presumption of innocence and the burden of proof.