The Right to Silence

The Right to Silence

“Innocence never takes advantage of it. Innocence claims to the right of speaking, as guilt invokes the privilege of silence”.

Bentham 1827 cited by Skinnider 2001: p8

Anthony Hegarty MSc
www.discreet-services.com

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Let’s look at the Right to Silence from the perspective of common sense which is often not a perspective shared by the British legal system. I will outline a brief history of how the said right came into being and demonstrate that those reasons are no longer valid in 21st Century Britain.

If the right to silence is intended as a guard against self-incrimination then the reader will see that there are daily instances where it is very acceptable to allow an individual to incriminate himself before informing him of his right to silence and that these cases are legally admissible in evidence, without question. This is intended to demonstrate that in modern times we have not had a complete right to silence and therefore we should not fear modifications in the law which have in fact resulted in far greater communication between police, legal advisers and suspects with no evidence to support negative impacts.

I will then present why the right to silence appears to be so tightly guarded with any suggestion of it being taken away being strongly condemned. This, I will propose, is mainly in relation to confession evidence and how such declarations of guilt are elicited, and thus the safety of such admissions leading to miscarriages of justice. I will show that even with the right to silence laws being modified the fears of an increase in false confessions have proved to be unfounded and have not materialised.

The exact origins of the right to remain silent are not entirely clear but in the case of the United Kingdom it is likely to have stemmed from the days following the Star Chamber and the Ecclesiastic Courts where torture was often the preferred tool of the interrogator’s trade. At the time judges were authorised to interrogate suspects under oath and a refusal to testify would lead to punishment (Skinnider 2001:p7). However, in 1640 laws were introduced to end the interrogations under oath and the following year the said Star Chamber and Ecclesiastic Courts were discontinued. This led to not only the abolition of being forced to testify under oath, but also not being permitted to testify under oath.

If this account is correct, and it appears the popular view, then quite clearly the right to remain silent was born out of the need to protect the accused from torture and punishment, possibly for not testifying about matters of which he genuinely had no knowledge, and under those circumstances the right to remain silent was surely justified. However, we now live in the 21st Century and there are an abundance of laws to protect the interviewee from harm. Indeed, for over 100 years the right to silence has been on the statute books stating that:

A person charged in criminal proceedings…shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed…any offence…

Criminal Evidence Act 1898

The accused therefore had a right to testify, but not a duty (Skinnider 2001: p8). In 1914 in the case of Regina V Ibrahim the courts made the ruling even clearer: 

It has long been established...that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage excited or held out by a person in authority.

(Gilbert: ND)

Skinnider refers to a number of reviews of the right to silence dating back to 1968 on whether to abolish or amend it: 

“The failure of an accused person when questioned to mention some fact which he afterwards relies on in his defence cannot found an inference that the explanation subsequently advanced is untrue, for the accused has a right to remain silent… The failure of the accused to testify on his own behalf may not be made the subject of any comment… but he should make it clear to the jury that failure to testify is not evidence of guilt and that the accused is entitled to remain silent and see if the prosecution can prove its case”.

(Halsbury’s Laws of England 937-38 (1990) cited by Skinnider 2001: p19) 

However, this was reversed with the Criminal Justice and Public Order Act 1994 where section 34 points out that negative inferences can be drawn from the fact that a person chooses to remain silent but later relies on points for his defence which he could have reasonably been expected to mention at the time of his questioning (Criminal Justice and Public Order Act 1994), and this is as it remains today. There has been much criticism of this change in the law as it can be argued that you cannot be given the right to silence and then be penalized for exercising it. 

For some, the right to silence might provide some form of balancing of the scales when dealing with the police who would have an advantage with the knowledge of the law. Yet this has been catered for for many years with the caution first introduced through the Judges Rules: 

You are not obliged to say anything unless you wish to do so, but what you say may be put into writing and given in evidence.

Judges Rules, II

This has now been amended to: 

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.

Police & Criminal Evidence Act 1984 Codes of Practice Revised Edition 1999 s.10.4 

Apart from a post-arrest interview scenario the caution is used by police officers on the street when they suspect an offence has been committed and wish to continue questioning the suspect to gather enough evidence to make an arrest. The caution allows a person the opportunity to not incriminate himself when being questioned by the police. But despite all of the rhetoric and championing of the right to silence and the right against self-incrimination there are some offences where this caution is only administered after the person has already incriminated himself, and this situation is perfectly admissible in court, indeed there would be no other way to take legal proceedings. 

For example, to possess an offensive weapon in a public place is prohibited under Section 1 of the Prevention of Crime Act 1953. An offensive weapon has been identified by Lord Lane as falling into one of three categories; made for causing injury to the person; those adapted for such a purpose; and those not made or adapted but carried with the intention of causing injury to the person (CPS). Imagine the scenario at the entrance to a football stadium on a Saturday afternoon where two clubs with a reputation for violent fans or hooligans are to play. The police use their powers to search those entering the turnstiles for any prohibited weapons. A police officer finds a set of darts in the coat pocket of one fan. Darts, in their standard form, would generally fall into the category of an ‘intended weapon’, therefore proof of criminal intent would be required. 

There are of course ample innocent explanations for having a set of darts; perhaps the individual is going to a game after the match, or had just been to one. Therefore the officer is permitted to enquire why the darts are being carried, and in line with recommendations to keep an open mind when dealing with suspects (Kassin & Gudjonsson 2004 p:9), there would be no need to administer a caution as there is no reason at this stage to suspect an offence has been committed (PACE 1984 s.10.1). The individual replies that as this game has much fan rivalry and there is often violence he decided to carry the darts for some protection, just in case. 

At this point in the conversation the individual has incriminated himself; the officer has a power of arrest; and the points to prove unlawful possession of an offensive weapon under Section 1 Crime Prevention Act 1953 have been attained. There is no need to interview the suspect further. In fact, to interview the suspect again at the police station under caution would be unlawful: 

As soon as a police officer who is making enquiries of any person about an offence believes that a prosecution should be brought…the officer shall without delay cease to question him about that offence

Police and Criminal Evidence Act 1984, Codes of Practice section 11.4

The point made is that a central argument against abolishing the right to silence is that it would make people vulnerable to self-incrimination, although this has clearly been happening regularly since 1953 at least, when the Prevention of Crime Act came into being and nobody appears to have challenged it! There are many other offences which fall into the same loophole, particularly where the Road Traffic Act is concerned whereby the driver who refuses to disclose personal details to a police officer would commit an offence (Road Traffic Act 1988, section 165). Why have these loopholes not been closed, or at least addressed? Perhaps because we rightly assume that common sense does not need to be legislated, and in the case of the offensive weapon, we are able to focus on an account of the truth and not a right to withhold the truth.

Before defending the right to silence it is important to take the commonsensical challenge a step further. Does a person with a number of previous convictions really need to be told that he doesn’t need to say anything? Is it reasonable to suggest that such a person’s latest conviction should be overturned on the grounds that he wasn’t informed of his right to silence? The same question can be raised not for the individual with many previous convictions but for an arrested police officer. On 5th April 2006 the British tabloid newspaper The Sun reported on police Inspector Christopher Cropper who had been charged with drink and driving. His charges were dismissed by the court because it was argued by his defence counsel that he had not been cautioned before being questioned (Russell 2006). Mr Cropper was said to be 49years old and at the rank of inspector so it is probable that he would have in excess of 20 years police experience. Did Mr Cropper really need to be cautioned and informed of his right to silence?

Would it really have been a miscarriage of justice if Inspector Cropper’s conviction stood? It is fundamentally the same as the offender who has a long criminal history whose case is dropped for the same reasons and sadly this is the current trend of the British legal system which is lacking in common sense. The expression ‘Miscarriage of Justice’ appears to have been hijacked by those said to have been wrongly convicted with little or nothing written about those wrongly acquitted! 

False confessions can range from the police or other witnesses blatantly lying about the accused making admissions to persons genuinely confessing to crimes they clearly did not commit. It is a wide spectrum which also includes persons agreeing to confess in return for favours such as bail, reduced charges, possibility of a lesser sentence, or to have offences taken into consideration as oppose to being charged. The case of several Bedfordshire police officers allowing prisoners to have sex with their girlfriends in return for confessions, some false, is probably an extreme case (BBC) and although the news was rather sensationalised by the media, the officers’ side of the story was not made public and thus one should remain open minded as to their true motives as there are times when the rules are bent for the greater good. 

However, false confessions have been categorised by researchers and found to fall into three types; voluntary false confessions, coerced compliant confessions, and coerced-internalised false confessions (Kassin & Wrightsman, 1985 cited by Meissner et al 2003: p54). A number of underlying principles are suggested as to why someone would confess to a crime they did not commit which follow the above mentioned categories. A voluntary confession might be to protect the identity of another or to garner notoriety. Coerced compliant confessions have been attributed to immediate gain where the suspect will see the short term benefits over the long term negative consequences, such as the termination of the high pressure interview proceedings. Thirdly, coerced internalised false confessions would result from a memory distrust whereby the suspect either has no memory of the incident and accepts the allegations made against him, or after hearing the allegations he develops the memory to fit the crime (Kassin & Wrightsman, 1985 cited by Meissner et al 2003: p54). 

However, Meissner and others fail to mention a fourth principle as to why one might confess to a crime he did not commit; for example a burglar might confess to ten burglaries, eight of which he committed and the other two he did not, but knew of them through his associates. He will receive his favours such as bail etc and when it comes to trial he will retract the confessions claiming that he was coerced. He will prove that he could not have committed the other two burglaries which will render the other confessions unsafe. All the charges will be dropped and the police will again be criticised. 

The question of course is whether or not the tinkering with the right to silence would in any way alter the potential for false confessions. To take the above four scenarios whereby a false confession is made the police can be held to account for the second paradigm – coerced compliant confession, however they cannot become overnight psychologists and cannot be expected to be able to asses the mental states of interviewees when confessing under the first and third concepts, although it should be said that there would be greater difficulty in making such an assessment if the interviewee remained silent. Regarding the fourth hypothesis put forward by the writer of this paper the police can be criticised for not doing their homework on the admissions. 

A number of prominent convictions have been overturned by the Court of Appeal such as the Cardiff Three among others, due to excessive police coercion within the interview room where one of the interviewees, Stephen Miller, was ‘pressured’ into making a confession later deemed to be false. This confession which would fall into the ‘coerced compliant’ group was instrumental in convicting the interviewee and two accomplices of a murder they apparently did not commit (Gudjonsson 2002: p342). Their convictions were quashed in 1999. There are other cases where varying degrees of physical assault by the police was also alleged but this paper is limited in length and will attempt to focus on the mental coercion. 

The interview of Stephen Miller was fully tape recorded and legal representation was present throughout. The environment was however one of raised police voices which eventually led to the breakdown of Mr Miller who confessed to the murder and also implicated his two friends. The problem was clearly with the officers assuming the guilt of the suspects, perhaps through witness statements and circumstantial evidence, possibly before the commencement of the interviews, and interviewing to prove ‘their hypotheses alone’ and disregarding anything else which might have cast doubt on the guilt of the suspect. The officers appear to have been guilty of an investigative bias and only wanted to prove their case. This bias has been identified as central to many false confessions whereby officers will stop at nothing to prove their theories, perhaps based on their personal police experience, as oppose to looking at all the perspectives (Meissner et al 2003: p56). It is also fair to assume that most police officers would have little if any academic knowledge of false confessions and it’s quite probable that they were of the opinion that if they didn’t do it then they wouldn’t confess which is likely to be the rationale of most lay people with regard to guilt or innocence. 

Compounding the problems of investigative bias is that the more allegations that are put to the accused the more likely it is that he will become increasingly uncomfortable and give off non-verbal signals such as fidgeting in the chair and perspiring which are prone to be interpreted as signs of guilt (Meissner et al 2003: p5), which in turn will invigorate the interviewer thus forming a ferocious circle. This further strengthens the argument against using silence in an interview although the same non-verbal signals would not be absent from an interrogation where the suspect does not exercise the right. 

Nervousness, fear, confusion, hostility, a story that changes or contradicts itself…all are signs that the man in an interrogation room is lying, particularly in the eyes of someone as naturally suspicious as a detective. Unfortunately, these are also signs of a human being in a state of high stress.

Kassin 1997: p221

PACE, tape recording and video recording has all but eliminated the allegations of police brutality to secure a confession, but these accusations might have been replaced with police deception and trickery into getting a suspect to confess. Such trickery might be to inform the accused of the possession of compelling evidence and that he had better confess to avoid a harsh sentence, to just misleadingly befriending the accused into a false sense of security. This can lead to a development of trust and the accused making a confession. 

The recent Criminal Justice and Public Order Act 1994 amendment to the right to silence whereby the interviewee is cautioned about remaining silent on a point he might later rely on actually benefits all parties because by giving some form of explanation which can be checked and confirmed, if true, can absolve the individual from the enquiry at an early stage and would certainly not result in a lengthy interview. In 1995 the Human Rights Committee found that this modification which allows the judge and jury to draw adverse inferences in certain situations violates various provisions of Article 14 of the Convention on Human Rights, the right to a fair trial (Skinnider 2001: p5). However, despite this judgement there is now far less dependence on silence during police interviews and the level of confessions remains at 55%, the same level as before the change in legislation (Bucke et al 2000: p9). Additionally the police are able to check the accounts given by suspects. 

In 1827 Jeremy Bentham wrote of the right to silence: 

“Innocence never takes advantage of it. Innocence claims to the right of speaking, as guilt invokes the privilege of silence”.

Bentham 1827 cited by Skinnider 2001: p8

When the Birmingham Six were stopped in Belfast shortly after the bombings in 1975 and questioned by Special Branch officers they failed to mention that they had returned to the province to attend the funeral of IRA terrorist James McDade who had blown himself up while planting a bomb in Coventry, perhaps due to the fear of guilt by association; and whilst this point was not proof of their culpability in the Birmingham bombings, their silence on this element went against them at their trial, and it should be noted here that it is the jury who convicted them and not the police. 

But at that time an inquiry by Sir Henry Fisher was already underway examining the convictions of Colin Lattimore, Ahmet Salih and Ronald Leightonafter who had been found guilty of the murder of Maxwell Confait (BOPCRIS). The youths had confessed but the convictions were later quashed on appeal. The 1977 Fisher Enquiry and other miscarriages of justice led to the Police and Criminal Evidence Act 1984 (PACE) being introduced to regulate police procedure when dealing with suspects particularly during interviews. However research since the introduction of PACE suggests that although the coercive strategies have diminished, the number of confessions does not appear to have been affected (Irving & McKenzie, 1989 cited by Meissner 2003; p60). And this also supports the theory that the right to silence is not an effective safeguard for those accused of criminality. Therefore, altering, or even discontinuing the right to silence would probably not affect the level of false confessions or miscarriages of justice. 

But how would the situation be today if the right to silence were replaced with no right to speak? Would the Guilford Four, the Birmingham Six and the Cardiff Three be free? If they were not allowed to speak then they would still be in prison suffering an even greater miscarriage of justice. This is because not being allowed to speak would prevent the truth from being heard and this would be an unacceptable situation. But what exactly would make it unacceptable; not being allowed to speak, or being prevented from telling the truth? Because surely if one were permitted to speak with no restrictions on truth or lies then there is a possibility that the truth might not be heard; and this is the case with the right to silence in that, it also prevents the truth from being heard, simply because there is no duty to tell the truth. 

The burden of proof is rightly placed upon the prosecution. But in the UK that burden is sometimes too great particularly as there is no obligation on the accused to speak truthfully, except when testifying in court under oath. In the United States it is an imprisonable offence to knowingly and wilfully make a materially false statement to a federal law enforcement officer so there is an incentive at least to be truthful, as it is often the case, particularly in a murder, that the accused is the only person who knows the exact truth. 

Once a prima facie case has been presented that could not be non-suited by a motion for a directed verdict of acquittal, “… the accused can no longer remain a passive participant in the process and becomes - in the broad sense – compellable. That is, the accused must answer the case against him or her, or face the possibility of conviction.” 

Chief Justice Lamer in Canada P. (M.B.), cited by Skinnider 2001: p13). 

The above quoted case, despite being in Canada is relevant to the UK modifications to the right to silence and the human rights of the accused. In R v Birchall (1999) the Court of Appeal warned the jury needed to be instructed that they were sure that the prosecution had shown that there was a case to answer before considering if they should draw inferences from the accused’s decision to remain silent. This provides a safety net to ensure defendants are not convicted on the grounds that they chose to remain silent (Bucke et al 2000: p19).

Since the legislation came into being several interesting factors have come to light; more suspects are speaking to the police, albeit a lot of it lies but at least it allows the police to check the stories and build a case; more legal advisors are recommending their clients to waive their right to silence; and there has been less use of the right among all ethnic groups and particularly among blacks who had been the largest group to remain silent (Bucke et al 2000: p31). And despite this the level of confessions remains the same at 55%, thus discounting many of the original fears. 

 CONCLUSION DELETED TO REDUCE WORDAGE

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