The right to silence is the right of a suspect to refuse to answer questions or give information to the prosecution either at trial or during the investigation (Daly 2014 p.60). The right not to be compelled to testify against oneself and the right not to confess to guilt are expressed in Article 14(3) (g) of the ICCPR. Neither the ICCPR, nor the ECHR expressly guarantee the right to silence. Rather it can be inferred from international human rights instruments in general and also from Article 6(1) of the ECHR, which deals with the right to a fair trial. However, Article 6, or indeed any of the Convention’s other provision, does not give the specific right to remain silent. In spite of this, Berger notes
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that Article 6 has been interpreted by the European Court of Human Rights as including the right to remain silent as part of a fair trial; and case law has been providing principles which determine the extent to which this right will be protected by the Convention while at the same time allowing signatory nations to resolve the issue through domestic law. The European Court has thus sought to determine in what contexts the right to silence should be applied rather than establishing it as a specific provision (2006 p.342-6).
Furthermore, although the European Court of Human Rights has not explicitly said that conviction should not result from just adverse inferences from silence, this has been referred to in the case of Murray vs. United Kingdom (1873/91) (Dennis 2013 p.179) In this case, the applicant had chosen to remain silent during police questioning, and the Court cited the UN’s International Covenant on Civil and Political Rights (1966) which declared the privilege in Article 14 (3) (g) and stated: ‘Although not specifically mentioned in Article 6 of the Convention, there can be no doubt that the right to remain silent under police questioning is a generally recognised international standard which lies at the heart of the notion of a fair procedure under Article 6…’ By providing the accused with protection against improper compulsion by the authorities, these immunities contribute to avoiding miscarriages of justice and securing the aims of Article 6 (Berger 2006 p. 343). Dennis comments that since the Murray case Strasburg jurisprudence is clearer about when the right to silence can be applied, and goes so far as to identify in what circumstances inferences can be drawn and what part such inferences may play in convicting the accused (2002 p.37). Berger notes that just having a consensus among the Convention’s signatories is however not enough to allow the Court to make an exact definition on precisely how the right to remain silent should be applied as the context in which the issue arises can be very different from the core right of not being forced to admit guilt (2006 p.346).
The right to silence encompasses only oral representations made by a person and refers to a person’s right not to make oral statements to the police or any other criminal justice actor during the investigation of a criminal offense. Thus, the right to silence exists in the context of the police station when being questioned by officers and in the context of the trial. Berger comments that no matter how central to their investigation, questioning
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suspects and witnesses must be through voluntary co-operation (2006 p.352). The primary right to silence is in there being no legal obligation on a suspect to talk to police, and the secondary right is contained in the prohibition of this leading to adverse inferences being drawn during any subsequent trial (Griffith 1997 p.10).
Griffiths also suggests that the right to silence during pre-trial procedures can be complicated for courts to interpret and apply. Further, that the context of the police station is very different from that of the court even though they are both part of the same process. In a courtroom, the right to silence is viewed as being part of the due process that occurs within an adversarial system of criminal justice. This can be different in the context of the police station where empirical analysis has demonstrated that this right operates within a process of negotiation and compromise (1997 p.17).
According to Jackson, most people choose to speak to the police irrespective of their right not to do so. As silence is often interpreted as non-co-operation with the authorities, pressure to speak is high as it is regarded as behaviour that does not favour a suspect in terms of their liberty or the level of charge brought against them. Silence at trial risks being penalized by the jury even if they are told not to take it into account. This being the case, it would not appear that the right to silence actually protects the innocent nor does it affect many people’s decision about whether to speak (2008 p.848-9). Furthermore, in many cases of police investigation, as it is not necessary to compel suspects to give evidence the right to silence is maintained. Indeed, the suspect should have the chance to participate effectively in defending themselves (ibid p.582).
Neumann points out that the right to silence is recognized as absolute in many states. In addition, under the international human rights conventions, there is no limitation placed on this right. In some domestic jurisdictions, statutory provisions have been included to the effect that a person has the right to silence, but if the person does not provide information to the authorities or at trial, then adverse inferences may be drawn from the failure to provide information (2004 p.3). It should be noted that the right to silence varies from country to country; for example, in the US citizens rely on the Fifth
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Amendment for their protection and no adverse inferences are allowed to be drawn. The German Federal Code is similar to the Fifth Amendment of the United States. However, in Germany adverse inferences may be drawn if the defendant selectively refuses to answer certain questions. However, even though England, Wales, and Northern Ireland have the right to not speak, adverse inferences are allowed to be drawn. In Korea, illegal evidence is not always excluded unless the illegal conduct is the direct cause of the confession. In China, the privilege against self-incrimination does not exist (2004 p.138).
According to Dennis, the rationale behind the right to silence is that it protects innocent people from being wrongfully convicted because of mistakes in the process of criminal justice. It is also an application of the presumption of innocence which places the burden of proof on the prosecution. The right also reflects a principle of respect for human autonomy and protects the individual from undue state intrusions or being forced to make cruel choices (2013 p.196). Here we see two strands to the rationale, which Jackson describes as ‘intrinsic substantive’ and ‘non-substantive’. The former refers to the principle that the accused should not be required to incriminate themselves and the latter that it is part of a fair trial in which address other principles such as the presumption of innocence and the paramount importance to avoid wrongful convictions. Jackson believes it is the intrinsic substantive rationale that is the main concern and links the right to silence with the idea that the participation of the accused should always be voluntary. However, it is not always easy to know to what extent participation has been voluntary – especially in police custody. Furthermore, given that international human rights law protects people from being tortured or subjected to cruel, inhuman or degrading treatment, it is arguably difficult to justify a separate right to silence and the privilege against self-incrimination (2008 p.864). Daly comments that this right is seen as both protection for the suspect and hindrance for the police and prosecution and that this difference of interests is seen in how civil rights groups argue for ‘the preservation of this fundamental procedural protection’ whereas the police and government usually argue for greater investigative power (2014 p.61).
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means to protect the dignity and security of the accused but also to uphold the procedural rights of the defence which have been shown to be crucial not just at trial but from the moment that criminal investigations are initiated and the suspect has to answer allegations.
1.4.3. The Privilege against Self-Incrimination.
Individuals accused of crimes have a right against self-incrimination at all stages of a criminal case or delinquency proceeding. Suspects are entitled to refuse to answer any question or produce any document that might incriminate them. It has also been suggested that the right to claim the privilege against self-incrimination may protect individuals from unlawful coercive methods used to obtain confessions (Neumann 2004 p.3). Redmayne suggests that this privilege is ‘one of the more puzzling rules of criminal procedure’ as it places restrictions on criminal investigating by stipulating that no suspect can be required to provide evidence that could incriminate him or her at trial. They cannot be held in contempt of court for not answering questions or providing documents to the prosecution (2006 p.209).
McInerney points out that the privilege is viewed as incorporating three separate though linked elements; namely the privilege against self-incrimination afforded to witnesses in criminal, civil or non-judicial investigative proceedings, the right of a defendant not to give evidence at trial and the right to silence of a suspect in the pre-trial criminal investigation (2014 p.102). He added, that the right not to incriminate oneself, is important and needed in all stages of criminal investigation as it affords a kind of ‘equality of arms’ between the State and individual suspects (ibid., p138). It should noted, however, that bodily samples, unlike testimony can be obtained by force. PACE ss.61 & 63 allow the police to take non-intimate samples and fingerprints.
Article 14, paragraph 3 (g), guarantees the right not to be compelled to testify against oneself or to confess guilt. This means that the investigating authorities must not use any undue psychological or physical pressure, direct or indirect to obtain a confession. Any