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 ?
Salah Abdeslam's lawyer, Frank Berton, said his client had invoked his right to silence.
After his arrest in Brussels on March 18, Abdeslam answered some investigators' questions but then exercised his right to silence following the suicide bombings in Brussels on March 22 that killed 32 people.
Empirical developments on false confessions establish that there are "known innocents" who attempted silence, and their cases raise the possibility that a more robust right to silence could decrease wrongful convictions.
Instead of having a protected right to silence, the suspect is forced to decide between three terrible choices: give a statement and implicate himself; lie, and be charged with perjury; or refuse to talk--as the Constitution says he can
Magistrates heard that Rhodes exercised her right to silence throughout her police interview.
Murray, jailed for involuntary manslaughter, is expected to plead the Fifth Amendment invoking a right to silence if asked to give evidence.
During last year s debate on Work Health and Safety laws, the Liberals in the Legislative Council moved an amendment regarding self incrimination protection the right to silence, Mr Rau said.
Second, the qualification of the right to silence is beset with philosophical difficulties associated with the inappropriate undermining of fundamental legal principles including the presumption of innocence.
1988: New law could erode right to silence The British Government has announced plans to change the law regarding a suspect's right to remain silent so that remaining silent could incriminate rather than protect a suspect.
Local band Right to Silence will provide live music and the pub's popular resident quiz master, David Alley, will take the role of compere.
The convicted trafficker was granted his legal rights such as having a defence attorney, self-defence, the right to silence, expressing dissatisfaction with verdict, he added.
The Supreme Court has ruled that Glenn Mulcaire cannot hide behind his right to silence.