right to silence

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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.

References in periodicals archive ?
My article described how England's new limits to the right to silence allow judges and juries to consider as evidence of guilt both a suspect's failure to answer police questions during interrogation and a defendant's refusal to testify during trial.
Khan, 21, exercised his right to silence in the police interview before admitting his guilt at the Huddersfield court.
But it said he exercised his right to silence throughout questioning and "largely gave a 'no-comment' interview".
For some time now under this Labour government we have been steadily sliding into a police state: the right to silence has gone, jury trials are fatally flawed by majority verdicts and teenage jurors, the ancient rules against being tried twice for the same offence have been destroyed, the hoohah over 42 days for alleged terrorists, the imposition of identity cards, the police have terrifying powers to probe our lives and enter our homes, and the independence of judges and magistrates has been whittled away.
I had sought an adjournment of the ERC disciplinary hearing on the grounds that it interfered with my right to silence in other proceedings, but this has been refused.
Human rights judges in Strasbourg are hearing a complaint that forcing car owners to state who was behind the wheel caught speeding on camera breaches their right to silence.
He was killed in a hit and run accident, and the car's owner, a passenger in it at the time, has hidden behind his right to silence and refused to name the driver.
To stem this tide of lawlessness that threatens to swamp this State, feuding crime gangs must be targeted, the right to silence censored and there must be the employment of heavy powers of detention and interrogation.
Both the Thirlwalls were later arrested but when interviewed by police exercised their right to silence.
But David Burns, QC, defending, told appeal judges Bell hadn't grasped the implications of the caution and his right to silence.
Warning overseas defendants of the right to silence and that any statements made may be used in a court of law is no problem.
The ABD says drivers have a fundamental right to silence and should not be forced to incriminate themselves.