‘Right to Silence’
The Legal Position.
The right to silence has been a central tenet of common law, within England and Wales, since the seventeenth century. The defendant was considered incompetent and therefore, unable to give evidence at their trial. The ‘right’ was a reaction to the attempts of The Star Chamber, to force defendants to provide answers through torture. After 1912, suspects prior to trial, could also refuse to answer questions.
However, this right is not a single right in itself, but comprises of six immunities:
- 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.
- A general immunity… from being compelled on pain of punishment, to answer questions the answers to which, may incriminate them.
- 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.
- 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.
- 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.
- 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.
“The Right to Silence” is described as ‘the protection given to a person during criminal proceedings, from adverse consequences of remaining silent’. It is also sometimes referred to as the privilege against ‘self-incrimination’. It is used on any occasion, when it is considered that the person(s) being spoken to, is under suspicion of potential criminal proceedings. The right to silence is inherent in the presumption of innocence, within our laws.
Surely, someone’s innocence would be a compelling reason to speak up. We believe that the ‘right to silence’ is a key factor in perpetuating the concealment of the truth and all too frequently, enables the guilty to escape justice. Some of the six ‘immunities’ that comprise the right to silence, seem absurd to the lay person, as they set the prosecution up for disadvantage. We believe that the law should be impartial, not prejudiced. A “privilege against self incrimination” clearly is prejudiced in favour of the accused.
The Russian playwright, Yevgeny Yuvtushenko wrote, “when the truth is replaced by silence, the silence is a lie.”
Currently, there are exceptions to the ‘right to silence’:
- The Regulation of Investigatory Powers Act 2000 s.49 and s.53 make it a criminal offence (with a penalty of two years in prison, or five years with regards to child sex offences) to fail to disclose when requested, the key to any encrypted information.
- When a vehicle is alleged to have been involved in an offence, section 172 of the Road Traffic Act 1988, as amended by section 21 of the Road Traffic Act 1991 enables the police to require the vehicle’s registered keeper, or any other relevant person, to provide information as to the identity of the vehicle’s driver. A special warning is given, indicating that refusal to do so constitutes an offence in itself.
- Under the Police Reform Act 2002, a person failing to provide a constable in uniform or designated person their name and address, where they are suspected of having behaved or behaving in an anti-social manner, is a criminal offence.
Given that murder and manslaughter are two of the most serious felonies that can be committed, (some of the above pale by comparison), we have to ask why is there not a ‘statutory exception’ made in such complex serious cases, particularly when considering ‘joint enterprise’, where a ‘secondary party’ took part in an attack, that resulted in the death of a third party and is therefore a vital witness to the events? Surely it is reasonable, for that person to be compelled to take ‘the stand’ and to provide a full account of what happened and for it to be challenged in front of a jury. Furthermore, why should those charged with murder or manslaughter, be shielded from leaving the safety of the dock, to take ‘the stand’ to face questions in front of a jury, even if they refuse to answer?
The legal stance is, that innocent persons may have many reasons to stay silent, which is undoubtedly true. So, let those reasons be heard behind closed doors, and allow the court to establish whether the reasons put are valid and not simply an opportunity to cynically manipulate the system, in order to escape justice.