The Right to Remain Silent

The Right to Remain SilentBefore the mid-nineties, when suspects were being questioned by the police in relation to an offence, they had a definite right to remain silent. However, this was changed somewhat with the introduction of s.34 of the Criminal Justice and Public Order Act 1994. Although this statutory provision does not usurp this right altogether, it does set out some fundamental criteria that can be relied upon by a magistrate or jury when they may feel that a defendant should have been more cooperative at the time of the police interview. As a consequence, they can then go on to draw adverse inferences from this silence.

We can all probably relate to the police dramas where an arrogant individual is being questioned by the police for a crime of which he or she is accused, and the individual insists on staring into space, chewing gum and casually answering ‘no comment’ to each and every question that is put to them. For years this was a very common barrier, one that the police encountered on a regular basis. It was strongly felt that the fundamental right of silence was being abused, and this definitely hindered the determination of the facts in such a case.

In short, a change in the law was clearly required. But this change would need to be legislated in such a way so as not to breach an individual’s human rights, especially with regards to Article 6 of the European Convention on Human Rights (ECHR), which aims to ensure that everyone is entitled to a fair trial. With this in mind, s.34 of the Criminal Justice and Public Order Act 1994 came into force.

Very soon after this provision came into effect, it was adjudicated by the European Court of Human Rights in the case of Murray v. UK (1996) 22 EHRR 29, where it was argued that s.34 was in fact in breach of Article 6 of the ECHR. The European Court held, however, that this provision could be consistent with Article 6. After all, s.34 has never actually criminalised or withdrawn a defendant’s right to silence; it only stipulates that adverse inferences can be drawn from such a silence.

A defendant is still perfectly entitled to remain silent when being questioned by the police, but he or she should have had access to legal representation before taking part in any interview. Moreover, the legal representative is required to set out the possible implications of remaining silent. If the defendant had been charged and questioned before he or she were permitted access to a legal representative, no adverse inferences could be drawn.

The adverse inferences which specifically relate to s.34 are as follows:

  • Not mentioning a specific fact during questioning which is later relied on in the defence
  • Once charged, failure to mention a fact when it would be considered reasonable to do so
  • Failing to account for marks, objects, substances or clothing that was found on the defendant at the arrest scene
  • Not disclosing the reason why the defendant was at a specific place or what he or she was doing at the time of the incident

If you go by the premise that an innocent person should not have any difficulty in revealing the type of information set out above, you can soon come to appreciate exactly what s.34 is aiming to achieve and eliminate. Many people thought that s.34 represented a huge swing away from the protection of rights in this country, but to be fair, it seems likely that they exaggerated this provision completely out of context.

All s.34 aims to achieve is a balance of justice. Defendants still have the right to remain silent, but it is only fitting that when they choose to be awkward and uncooperative with the police, they themselves place spanners into the spokes of the wheels of justice. It is only fair that a jury or judge should be given the opportunity to evaluate this silence further. The law that was in place prior to the introduction of s.34 was geared too much towards the protection of the defendant, and that made it difficult for the legal system to achieve a just outcome.