right to silence

(redirected from Right to remain silent)

right to silence

the idea that a person should not be able to incriminate himself simply by saying nothing at all. In England and Wales the right has been known for some time, even although there was no constitutional provision. The history is not as might be expected. Originally all witnesses could be interrogated, and although this was stopped in the 17th century, the accused was denied the right to give evidence in his own defence. This was changed by the Criminal Evidence Act 1898. In the 20th century the position was arrived at first under the Judges' Rules of 1912 and latterly under the Police and Criminal Evidence Act 1984 that a suspect had to be cautioned that he need not answer any questions put to him. However, in terms of the Criminal Justice and Public Order Act 1994 (similar to the Criminal Evidence (Northern Ireland) Order 1988), courts are permitted to comment on a failure to give evidence. As a result, the caution given to suspects has been changed to warn the suspect of this fact. It has been held that the Northern Ireland rules did not infringe the EUROPEAN CONVENTION ON HUMAN RIGHTS albeit the Convention has been interpreted in the past to the effect that the right to silence is an inherent part of the protection available under Article 6 of the Convention. The right has been further reinforced in the UK by the Human Rights Act 1998.

In Scotland, the history is similar, and the principle has been described as sacred and inviolable. There are no statutory measures such as exist in England, but the common law caution administered warns suspects of their right and a detained person must be warned that he need only give his name and address. So far as comment to the jury is concerned, the Scots courts have always been able to comment but subject to restraint and only in special and appropriate circumstances. Since 1995 the prosecutor has been able to comment.

In the USA, the use of the Fifth and Fourteenth Amendments have long given constitutional protection to citizens - a person does not have to answer a question if, truly answered, it would tend to incriminate him. Being a constitutional provision, the right is more general and of wide influence in matters outside the actual courtroom. Suspects have to be cautioned and informed of their right. See EXCLUSIONARY RULE.

Collins Dictionary of Law © W.J. Stewart, 2006
References in periodicals archive ?
Thompkins, the Court applied the "unambiguous" standard to the right to remain silent, holding there was "no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent...." (24) Not only did the Court apply this standard in the prewaiver context, but the Court seems to have departed from Miranda's "in any manner" language by requiring a suspect to actually announce in order to invoke his right to remain silent.
The unidentified confident told the Chosun Ilbo that Kim Young Hwan, 49, who was arrested in China in March and returned home last week, apparently "suffered various forms of torture by Chinese authorities, including torture with a cattle prod" during his 114 days in detention while he was exercising his right to remain silent.
In practice, the police or justice ministry will provide the person with a letter of rights' listing his basic rights during criminal proceedings, such as: the right to remain silent, to a lawyer, to be informed of the charges, to interpretation and translation in any language, to be brought promptly before a court following arrest and to inform someone else about the arrest or detention.
The conviction of a man or woman on an unrelated crime should not deprive them of their legal right to remain silent, and that - as the warning made famous by TV cop shows puts it - anything they say can and will be used against them in a court of law.
If the police arrest a mime artist do they tell him he has the right to remain silent? Whose cruel idea was it have an 's' in the word lisp?
Thompkins, (12) the Court held that a suspect must affirmatively invoke his right to remain silent; mere silence alone will not automatically invoke the right.
WASHINGTON: The White House is reviewing a plan that would require the Justice Department and FBI to consult with the intelligence community before deciding whether to inform terrorism suspects arrested in the United States that they have the right to remain silent and to consult with an attorney, according to the Washington Post.
* the person taking the statement must clearly explain to the young person, in language appropriate to his or her age and understanding, the right to remain silent and the right to consult a lawyer or other appropriate adult;
At a time when the Respect the Ref campaign in gathering momentum we must respect this highly-rated ref's right to remain silent and wish him well for his toughest challenge yet.
"You have the right to remain silent. Anything you do say may be given in evidence.
Our great and independent judicial branch has, through tireless effort and stalwart adherence to law, led the way in securing from the very bedrock of our democracy these essential "tools." The right to remain silent, the right to be presumed innocent, and the right to challenge the state's case by trial are guarantors of this process.
A friend said: "He answered every question they asked him and didn't use his right to remain silent. But just like Kate, he repeatedly asked them what evidence they have against them both.