Right To Silence

Historically, the right of silence came about when individuals and society began to frown upon a practice that had developed in England in the early sixteenth century. In short, Star Chambers and Ecclesiastical Tribunals regularly resorted to torture and physical punishment to force confessions and admissions from defendants.

Consequently, Common Law developed core principles and rights that protected individuals from the oppressive use of State, and at that time, Church powers.

These core principles and rights have not only been recognized on a regional level; rather, the right to silence has an international voice. Article 14 of the International Convention on Civil and Political Rights (‘ICCPR’) implants the universal notion of the right to a fair trial. No doubt, there are local laws that contradict International Law; also ones that ‘appear’ to contradict it, but in reality, don't.

That said, an arrest occurs when police officers take a suspect into custody. The suspect arrested must answer questions asked about their name, age, address, etc. One can also be searched in order to protect the police officer.

An officer’s “brief and cursory” holding and questioning someone is a detention (“Investigatory stop”), which, must be no longer than necessary and officers must investigate with the least intrusive means that are reasonably available.

However, when an officer prolongs a detention beyond what is brief and cursory and broadens it, then the detention may turn into a de facto arrest, that is, an actual but not official arrest.

Arrests can occur without the “Miranda Warning” being given. If the police later decide to interrogate a suspect, the warning must be given at that time:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Some police departments add the following sentence:

“We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.”

One must give a clear, affirmative answer to this question. Silence is not acceptable as waiving these rights because the arrestee may not understand or may not speak English or substitute as his or her first language. If the Miranda Warning must be translated to the suspect; that translation is usually recorded.

The right to silence benefits the innocent suspect by providing it with a safer alternative to speech, as well as by reducing the probability of wrongful conviction for suspects who remain silent with and without a right to silence.

If one indicates in any manner, at any time prior to or during questioning, that he or she wishes to remain silent, the interrogation must cease. If one states that he or she wants an attorney, the interrogation must cease until an attorney is present. At that time, one must have an opportunity to confer with the attorney and to have him or her present during any subsequent questioning.

The right to silence is just that; a right. The concept itself holds no firm parameter nor can be defined in one specific axiom. Rather, commentators are in agreement that the right to silence encompasses a bundle of loosely related immunities, that cohesively combine together to produce an informal ‘right’.

The rationale behind the right to silence was confirmed by the High Court in Petty & Maiden v R. In that decision, the court stated that a person who believes, on reasonable grounds, that he or she is suspected of being a party to an offence is entitled to remain silent when questioned or asked to supply any information by any person in authority about the occurrence of an offence, the identity of the participants and the roles they played.

Further, the court held that central to the right to silence was that ‘no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information’. In the court’s opinion, drawing such an inference would, arguably, render this right ‘valueless’.

In Sorby v Commonwealth, the court stated that it is a ‘firmly established principle of the Common Law, for over 300 years ago, that no person can be compelled to incriminate him/herself’.

Thus, an arrest is not a finding that one is guilty of a crime or that one has done anything wrong at all. A conviction means that one have been found guilty of a crime by a court or that one has agreed to plead guilty to a crime.

An arrest is not a conviction and anyone can be wrongfully arrested or falsely accused. An arrest record is not definitive proof that someone broke the law. It simply indicates that there was a suspicion that they may have.

Simply put, an arrest is merely the allegation of some type of wrongdoing, which may or may not be true. Unless an arrest record is followed by a criminal courthouse case search, it is merely an accusation at best; to which:

“Saying nothing sometimes says the most.” Emily Dickinson

Food for thought!