Right to remain silent

The right to remain silent is a legal right recognised, explicitly or by convention, in many of the world's legal systems.

The right covers a number of issues centred around the right of the accused or the defendant to refuse to comment or provide an answer when questioned, either prior to or during legal proceedings in a court of law. This can be the right to avoid self-incrimination or the right to remain silent when questioned. The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions before or during a trial, hearing or any other legal proceeding. This right constitutes only a small part of the defendant's rights as a whole.

History

Neither the reasons nor the history behind the right to silence are entirely clear. The Latin brocard nemo tenetur se ipsum accusare ('no man is bound to accuse himself') became a rallying cry for religious and political dissidents who were prosecuted in the Star Chamber and High Commission of 16th century England. People coming before these tribunals were forced to make the ex officio oath by which they swore to truthfully answer the questions to be put before them without knowing what they were being accused of. This created what has been termed the cruel trilemma whereby these accused were forced to choose between committing the mortal sin of perjury (if they lied under oath to protect themselves), harsh punishment for contempt of court (if they refused to answer), or betraying their "natural" duty of self-preservation (if they told the truth to honour their oath).

After the parliamentary revolutions of the late 17th century, according to some historical accounts, the right to silence became established in the law as a reaction of the people to the excesses of the royal inquisitions in these courts. The rejection of the procedures of the Courts of Star Chamber and High Commission eventually resulted in the emergence of the principle, according to US jurist and law of evidence expert John Henry Wigmore, "that no man is bound to incriminate himself, on any charge (no matter how properly instituted), or in any Court (not merely in the ecclesiastical or Star Chamber tribunals)". It was extended during the English Restoration (from 1660 on) to include "an ordinary witness, and not merely the party charged".

However, the right to silence was not always a practical reality for all accused in the English courts for some period afterwards. With limited access to legal counsel (often depending on the social status of the accused), a shifting standard of proof, and a system generally distrustful of silent defendants, a criminal accused who remained silent was often committing figurative or literal suicide. Nevertheless, it remained a basic right available to the accused and has been an accepted practice over the past few centuries. In England, the practice of judicial questioning of accused persons at trial (as distinct from questioning prior to trial), did not really disappear until well into the 18th century. But by the 19th century, the accused was not allowed to give evidence on oath even if they wanted to – also said to be a reaction to the inequities of the Star Chamber and High Commission.

In the United Kingdom and countries formerly part of the British Empire (such as Commonwealth nations, the United States and the Republic of Ireland) the right to silence has remained enshrined in the common-law tradition inherited from England. In the US the right existed prior to the American Revolution. However, it was considered one of the most important safeguards protecting citizens against arbitrary actions of the state, and was enshrined in the Fifth Amendment to the Constitution, along with the words "due process", which was first mentioned in a statute of Edward III in 1354 and contains similar wording to the Fifth Amendment.

The right to silence spread to many nations of the British Empire. The two different but diverging paths along which these rights evolved and operate in Anglo-American jurisprudence (one through rights expressed in an entrenched constitution, the other in Acts of Parliament specifying rights or protections at common law) can be seen today in Commonwealth nations like Australia and New Zealand, where police officers are still required at common law to issue "Miranda-style" warnings (but which are completely unrelated to the US Miranda warning ruling) and inform an arrested person that they do not have to answer any questions but that whatever they do say (or do) can be used in court as evidence. The police must also determine whether the arrested person understands these rights. Any failure to do so can jeopardise a criminal prosecution. While differing slightly from the wording used in the US, the intent is identical and comes from the inherited tradition of law. However, in Australia, for instance, anything said by the accused under police questioning while in custody will generally not be accepted into evidence unless it is corroborated, generally via audio or video record.

As in the US, suspects in Commonwealth countries are also entitled to have counsel present during questioning. In the United Kingdom, laws introduced in the past decade, while still supporting the presumption of innocence, have swung the right to silence slightly back the other way: suspects are told they have the right to remain silent but are now also cautioned that anything they do not reveal in questioning but later rely upon in court may harm their defence. In other words, in some cases inferences can be drawn. The right to counsel, which also became increasingly entrenched in the US following the American Revolution, gave defendants a practical method of mounting a defence while remaining silent, and the development of the modern police force in the early 19th century opened up the question of pre-trial silence for the first time. The key American case of Bram v. United States[1] paved the way for the right to be extended to pre-trial questioning, and the practice of "Miranda warnings" became established in the US and elsewhere following the case of Miranda v. Arizona in 1966.

While initially alien to inquisitorial justice systems, the right to silence spread across continental Europe, in some form, throughout the late 20th century, due to developments in international law which saw an increasing universalisation of certain due process protections. As an example, the right is recognised in key international human rights documents such as the International Covenant on Civil and Political Rights.

Worldwide

Australia

Australia has no constitutional protection for the right to silence, but it is broadly recognised by State and Federal Crimes Acts and Codes and is regarded by the courts as an important common law right. In general, criminal suspects in Australia have the right to refuse to answer questions posed to them by police before trial and to refuse to give evidence at trial. As a general rule judges cannot direct juries to draw adverse inferences from a defendant's silence (Petty v R) but there are exceptions to this rule, most notably in cases which rely entirely on circumstantial evidence which it is only possible for the defendant to testify about (Weissensteiner v R). The right does not apply to corporations (EPA v Caltex).

There are numerous statutory abrogations of the right, particularly in the area of bankruptcy. It is also not available to witnesses testifying before a Royal Commission. There are also abrogations of the right in recent Federal anti-terrorism and Victorian organised crime Acts.[2] Each of these acts set up coercive questioning regimes which operate outside the normal criminal processes. Direct testimonial evidence gained from this coercive questioning cannot be used in any subsequent criminal trial of the person providing the evidence, however a witness who testifies in his defence at a subsequent criminal trial who provides a different testimony to that during the questioning may face prosecution for perjury.

The state of New South Wales passed the Evidence Amendment (Evidence of Silence) Act 2013 which allows the judiciary to direct the jury to draw unfavourable inferences against a defendant who omits a fact during police questioning that they later rely on in court in a bid to be found not guilty.[3] The law strictly applies to those over the age of 18 and who have an Australian legal practitioner available. The change is designed to reflect reforms made in the United Kingdom in 1994 and will apply to indictable offences that carry a penalty of five or more years imprisonment.

Bangladesh

Article 33 of the Constitution of Bangladesh discusses the rights of the arrested and detained; no right to silence is mentioned either in the Constitution[4] or the Bangladesh Penal Code,[5] except in Article 35(4) of the Constitution, which protects individuals from self-implication.[4][6] To facilitate protection from self-implication, Bangladesh Penal Code makes an exception in cases of confessions, in which case, the Magistrate obtaining a confession under Section 164 must explain the confessor's right to silence, and must attest to the fact that the rights of the confessor were read out to him and explained, and the confessor waived his right of silence.[6]

Canada

The right to silence is protected under section 7 and section 11(c) of the Canadian Charter of Rights and Freedoms. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.

These rights to silence exist only when the suspect is knowingly dealing with a person in authority. When the subject is unaware he is dealing with the police, such as in the case of an undercover operation, these protections do not exist. Statements made to police officers during undercover operations are almost always allowed into evidence unless the conduct of the police was deemed so egregious that it would shock the community.

One case in relation to the right to silence is the Hodgson decision (R. v. Hodgson, [1998] 2 S.C.R. 449). In this case the subject was confronted by the victim and her parents. He confessed to them and was subsequently held at knife point until the police arrived. The court found that his confession was admissible because the complainant and her parents were not deemed to be 'persons in authority'. The subject was convicted based in large part in his confessions made at that time.

In R. v. Singh (163 C.R.R. (2d) 280), a person in police custody invoked his right to silence 18 times, and after each invocation, the police continued to browbeat the detained subject with further questioning, implying that his claim of a right to silence was either ineffective or meaningless. The Canadian Supreme Court ruled that this police behaviour did not violate the right to silence, so the evidence obtained could be admitted. It is important to note that most rights in Canada can be limited by s. 1 of the Charter, which permits rights to be reduced if they interfere with substantial government interests, or by s. 24 of the Charter.

Although an accused has the right to remain silent and may not be compelled to testify against himself, where an accused freely chooses to take the witness box and testify, there is no further right to silence and no general restriction on what kinds of questions they may be required to answer. section 13 of the Canadian Charter of Rights and Freedoms guarantees that witnesses may not have any incriminating evidence they gave as testimony used against them in separate proceedings. In effect, a person can be compelled to give involuntary self-incriminating evidence, but only where that evidence is to be used against a third party.

In most cases, except for certain sex offences or where the victims are children, spouses can not be compelled to testify against each other.

Czech Republic

The Czech Republic protects the right to silence by two clauses in the Charter of Fundamental Rights and Basic Freedoms. Article 37, clause 1 states that "everyone has the right to refuse a statement if he/she would cause risk of prosecution of himself/herself or a close person". In Article 40, clause 4, it is stated that "an accused person has the right to refuse a statement; he/she must not be deprived of this right in any way".[7]

England and Wales

The right to silence has a long history in England and Wales, first having been codified in the Judges' Rules in 1912. A defendant in a criminal trial has a choice whether or not to give evidence in the proceedings. Further, there is no general duty to assist the police with their inquiries.

At common law, and particularly following the passing of the Police and Criminal Evidence Act 1984 under Code C adverse inferences may be drawn in certain circumstances where the accused:

  • fails to mention any fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention;
  • fails to give evidence at trial or answer any question;
  • fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested; or
  • fails to account on arrest for his presence at a place.

There may be no conviction based wholly on silence.[8] Where inferences may be drawn from silence, the court must direct the jury as to the limits to the inferences which may properly be drawn from silence.[9]

This does not apply to investigations by the Serious Fraud Office, where there is no right to silence, nor in relation to terrorism.

Under Section 49[10] and Section 53[11] of the Regulation of Investigatory Powers Act 2000 (RIPA), it is an offence to fail to disclose when requested the key to encrypted data (with a penalty of two years in prison).

European Convention on Human Rights

The concept of right to silence is not specifically mentioned in the European Convention on Human Rights but the European Court of Human Rights has held that

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 the notion of a fair procedure under Article 6.[12]

France

In France, the French Code of Criminal Procedure[13] (art. L116) makes it compulsory that when an investigating judge hears a suspect, he must warn him that he has the right to remain silent, to make a statement, or to answer questions. A person against which suspicions lay cannot legally be interrogated by justice as an ordinary witness.

At the actual trial, a defendant can be compelled to make a statement. However, the code also prohibits hearing a suspect under oath; thus, a suspect may say whatever he feels fit for his defence, without fear of sanction for perjury. This prohibition is extended to the suspect's spouse and members of his close family (this extension of the prohibition may be waived if both the prosecution and the defence counsel agree to the waiver).

Germany

According to § 136 Strafprozessordnung (StPO, i.e. Criminal Procedure Code) a suspect, arrested or not, has to be informed before any interrogation about their right to remain silent. It is not allowed to draw any inference from the complete silence of the accused in any stage of the criminal proceedings. However, it is allowed to draw conclusions if the accused remains silent only to certain questions about the crime. Suspects cannot be heard under oath.

A person against which exist plausible causes of suspicion can be interrogated as an ordinary witness in criminal proceedings against another person. However, in this case according to § 55 StPO, the witness can refuse to answer questions which could incriminate themselves (or one of their relatives). The suspicious witness also must be cautioned about the right to remain silent. Suspicious witnesses cannot be heard under oath.

Hong Kong

The right to silence is protected according to common law.[14]

India

The constitution of India guarantees every person right against self incrimination under Article 20 (3)"No person accused of any offence shall be compelled to be a witness against himself". It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent, but only in the court of law. It is not clear if the accused can exercise his right to silence during interrogation by public servants. Interrogation techniques like narco-analysis, brain mapping and lie detection nullify the validity and legitimacy of the Right to Silence.[15] But in 2010 The Supreme court made narco-analysis, brain mapping and lie detector test as a violation of Article 20(3).[16]

Netherlands

In the Netherlands, each accused suspect has the right to remain silent to questions of the police and the prosecutor, during interrogation or investigation at the hearing.

There is an exception: The accused must co-operate when there is "een aan de wil van de verdachte onafhankelijk goed" (material which has an existence independent of the will of a suspect) and a legal obligation for the suspect to hand over such material exists. For example, a suspect has to co-operate with giving a blood sample (with a suspicion of alcohol in traffic). Or the defendant must co-operate in handing over mucus, dandruff or hair for a DNA test. Such a DNA test can only be done at the request of the Prosecutor and ordered by the judge. There also have to be serious objections against the accused. And temporary detention has to be applicable.

Northern Ireland

The Criminal Evidence (Northern Ireland) Order 1988 provided for adverse inferences being drawn for failure to mention something prior to being charged to an offence. The Criminal Procedure (Amendment) Rules 2009/2087 which came into effect on 5 October 2009, and replaced the Criminal Procedure Rules 2005, Pt 24 provides for post-charge questioning. This can be applied for failure to mention facts after a suspect has been charged with an offence.

The scope of Emergency Legislation in Northern Ireland includes limitations on the right to silence, extended police detention powers and limitations on a suspect’s right to legal counsel at time of arrest which can all impact upon a suspects right to a fair trial. In John Murray v United Kingdom, the ECHR declared that the fair trial guarantee encompassed the entire legal process from the moment of arrest through to conviction. The ECHR addressed this issue in a limited context in Murray v UK (1996); "To deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defence may well be irretrievably prejudiced, is – whatever the justification for such denial – incompatible with the rights of the accused under Article 6."

Pakistan

Article 13 of the 1973 Constitution of Pakistan protects a person from self-incrimination.[17]

Republic of Ireland

In the Republic of Ireland, the Supreme Court held the right not only a common law right but also a constitutional right which might however be validly limited by legislation (O'Leary v AG [1995] 1 IR 254).

In this jurisdiction, a number of statutory measures have re-interpreted the right to silence, such as the Criminal Justice Act 1984, the Criminal Justice (Drug Trafficking) Act, 1998 and the Offences Against the State (Amendment) Act, 1998. The general effect of some of these measures is to provide for adverse inferences to be drawn against a suspect who declines to answer questions while being questioned in Garda custody. The Criminal Justice Act 2006 also affects the right to silence, in that it permits inferences to be drawn from silence where no solicitor is present.

South Africa

According to Section 35 of the Constitution of 1996[18] ("Arrested, detained and accused persons") states:

  1. Everyone who is arrested for allegedly committing an offence has the right
    • to remain silent;
    • to be informed promptly
      • of the right to remain silent; and
      • of the consequences of not remaining silent;
    • not to be compelled to make any confession or admission that could be used in evidence against that person;

and later in the section:

  • Every accused person has a right to a fair trial, which includes the right
    • ....
    • not to be compelled to give self-incriminating evidence;

United States

The Fifth Amendment to the US Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. At trial, the prosecution can neither call the defendant as a witness, nor comment on the defendant's failure to testify. Whether to testify or not is exclusively the privilege of the defendant. Harris v. N.Y., 401 US 222,225 (1971). Outside the context of detention or arrest, a person has no duty to answer any questions of police at all; and if judicial compulsion is sought by the State, the person still can invoke his Fifth Amendment privilege against compulsory self-incrimination, and refuse to comply. Only if granted immunity by the state, in a formal proceeding, from having any testimony or evidence derived from the testimony used against him, can a person be compelled to answer over an assertion of this privilege. Kastigar v. US, 406 US 441, 462 (1972). If police detain (or arrest) a person, they must advise him that he has a right to remain silent, and the right to an attorney, among other rights. If the detained person invokes these rights, all interrogation must cease, and nothing said by the defendant in violation of this rule can be admitted against him at trial. Miranda v. Arizona, 384 US 436, 448–50, 455 (1966).

Uniform Code of Military Justice

In the United States, military personnel are covered by the Uniform Code of Military Justice (UCMJ). Under the UCMJ sworn military personnel, whether of enlisted, warrant or commissioned rank, have a right to remain silent that was established 16 years before the Miranda v. Arizona ruling.[19] There are significant protections against coercive self incrimination in Article 31, UCMJ,[20] but it does differ somewhat from the Miranda warning, and in essence provides greater protections.[19] This is one difference between civilian and military justice in the United States, and many other nations have similar corollary rules regarding military justice vs. civilian justice.[21]

See also

References

External links

Regent University School of Law and officer George Bruch from the Virginia Beach police department.

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