2.1 The right to remain silent when questioned by police and the right to remain silent at trial have different, but related, origins. This chapter examines the history of these rights in England and Australia, and briefly considers the position in other common law jurisdictions.
THE RIGHT TO SILENCE IN ENGLAND
The right to remain silent when questioned by police
2.2 Under investigative procedures introduced in England in the sixteenth century, constables were required to bring a suspect before an examining justice as soon as possible after arrest for interrogation. A record of the interrogation, including the suspect’s refusal to answer questions, was transcribed and presented at trial.1
2.3 The judiciary grew to consider confessions inherently unreliable because examining justices were not an organised, effectively supervised body and were prone to mistreat suspects to obtain confessions. Judicial distrust of confession evidence was widespread in England by the nineteenth century.2 The right to silence developed as a judicial response to this distrust. The development of the right to silence at trial also contributed to the development of the right to silence when questioned by police.3
2.4 The Metropolitan Police Force was established in 1829, followed by the various provincial forces over the next two decades.4 The Summary Jurisdiction Act 18485 separated the investigative and judicial functions of the state. Examining justices were prohibited from questioning suspects. This role was given to the newly established police forces.
2.5 In the late nineteenth century, the attitudes of individual judges to the admissibility of police interrogation evidence varied, causing uncertainty.6 In 1912 the Home Secretary requested the judges of the King’s Bench to consider the issue. This led to the issue of the Judges’ Rules, which provided that whenever a police officer decided to charge a person with a crime, the police officer should first caution the person that he or she was entitled to remain silent.7 The Judges’ Rules operated as a code of practice rather than a rule of law.8 The caution was revised during the following decades. In 1978 the Judges’ Rules were formally adopted by the Home Office and a revised version was published and circulated to police.9
2.6 The trial judge was permitted to direct the jury that any person suspected of a criminal offence was entitled to remain silent when questioned by police and that the jury must not hold this against the defendant.10
The right to remain silent at trial
2.7 The development of the right to remain silent at trial is frequently attributed to the practices of the English Courts of Star Chamber and High Commission.11 During the late sixteenth century, these courts developed the practice of compelling suspects to take an oath known as the “ex-officio oath” and, without formal accusation, to answer questions put by both the judge and the prosecutor. Failure to either take the oath or answer questions attracted severe sanctions, including torture.12 This practice was held to be unlawful on four occasions in the early seventeenth century13 and both courts were abolished in 1641.14 Following this, the rule developed that the defendant was incompetent to give evidence at trial.
2.8 However, other explanations for this rule have also been put forward. One theory is that the jury’s decision was made under oath and was a form of proof. Their finding could not logically follow from another form of proof, the oath of the defendant.15 Another suggested reason is the belief that anyone with a personal interest in the outcome of a trial was inherently unreliable.16 It has also been suggested that the defendant was prohibited from testifying because, if the defendant’s account differed from the evidence of other witnesses, the belief that people necessarily told the truth under oath would be challenged, undermining the whole concept of trial by oath and public confidence in the criminal justice system.17 It has been suggested that this procedure originated in the common law criminal procedure of the middle ages,18 or Roman canon law.19 Finally, it has been suggested that the incompetence of defendants stemmed from the concerns of judges about the unfairness of trials to defendants, arising from the poor quality of examining justices and juries, the hastiness of trials, the severity of penalties for offences and the inadequacy of appeal rights.20
2.9 The practice of permitting the defendant to make an unsworn statement at trial was developed by the judiciary in the nineteenth century as a way of enabling defendants to say something in their defence.21
2.10 The competence of defendants to testify in their own defence was re-established by the Criminal Evidence Act 1898.22 This Act provided that judges were permitted to comment to the jury where the defendant chose to remain silent at trial.23 In practice, this comment was usually restricted to a direction to the jury not to assume that the defendant was guilty on the basis of the defendant’s silence at trial.24 The prosecution was barred from comment.25 The Act also expressly preserved the defendant’s right to make an unsworn statement at trial.26
2.11 The law relating to the right to silence in the United Kingdom was substantially modified in Northern Ireland in 1988 and in England and Wales in 1994.27
THE RIGHT TO SILENCE IN NEW SOUTH WALES
2.12 The English law relating to the right to silence applied in New South Wales until 1891, when the defendant became a competent witness in New South Wales under the Criminal Law and Evidence Amendment Act 1891.28 This Act expressly preserved the defendant’s right to remain silent at trial by providing that the defendant was a competent but not a compellable witness.29
2.13 Two years later, the Full Bench of the Supreme Court of New South Wales held that the trial judge was permitted to direct the jury to draw adverse inferences from the defendant’s failure to testify.30 In 1898 judicial comment on the exercise of the right to silence at trial was prohibited.31
2.14 The defendant’s right to make an unsworn statement at trial was abolished in New South Wales in 1994, although the right still exists in some residual trials.32 Unsworn statements have now been abolished in all Australian jurisdictions.
2.15 The Evidence Act 1995 codified the common law right to silence when questioned by police in New South Wales.33 The Evidence Act 1995 also amended the law relating to the defendant’s right to silence at trial. The Act permits the trial judge to comment to the jury on the inferences it may draw from the fact that the defendant has exercised the right to silence.34
THE RIGHT TO SILENCE AS A CONSTITUTIONAL RIGHT
2.16 In the United States, the Fifth Amendment to the Bill of Rights, added to the Federal Constitution in 1791, provides that “(n)o person shall ... nor shall be compelled in any criminal case to be a witness against himself”. There are comparable guarantees in each of the state constitutions.35 The United States Supreme Court has held that the Fifth Amendment guarantees the right to silence during custodial investigation as well as at trial.36
2.17 The Canadian Charter of Rights and Freedoms (“the Charter”) states that every person has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.37 The Supreme Court of Canada has held that the right to silence when detained and questioned by police is one of the principles of “fundamental justice” provided for by the Charter.38 The Charter also states that any person charged with an offence has the right not to be compelled to be a witness in proceedings in respect of the offence.39 In Canada, both the judge and the prosecution are prohibited from commenting to the jury on the failure of defendants to testify at trial.40
RECENT EXAMINATION OF THE RIGHT TO SILENCE
United Kingdom
2.18 The Justice Evidence Committee (“the JEC”) published its report on the accused as a witness in 1968.41 The JEC proposed that the right to silence at trial be preserved,42 but that the prosecution be permitted to comment to the jury on the failure of the defendant to give evidence at trial.43 The JEC criticised the “undue moderation” of some trial judges in their jury directions and proposed a more forthright approach to judicial comment.44 The JEC also proposed that the defendant should be informed of the right to give evidence by the trial judge, in the presence of the jury.45
2.19 The Criminal Law Revision Committee (“the CLRC”) published its report on evidence in 1972.46 A majority of the CLRC proposed that where the defendant relied on a fact at trial which he or she did not tell the police when questioned, the tribunal of fact be permitted to draw “such inferences from the failure as appear proper”, if the defendant could reasonably have been expected to mention the fact earlier.47 The majority recommended that the judge be permitted to comment to the jury on the inferences available.48 The CLRC recommended that if the defendant refused to give evidence at trial or refused without good cause to answer any question, the court or jury again be permitted to “draw such inferences from the refusal as appear proper”.49 It recommended that both the prosecution and the trial judge be permitted to comment to the jury on the inferences available.50 The CLRC also recommended that before the presentation of the defence case at trial, the trial judge call on the defendant to give evidence and explain the consequences of the exercise of the right to silence.51 The CLRC recommendations were not implemented as a result of very strong opposition and the fact that the CLRC was divided in relation to its recommendations on silence when questioned by police.52
2.20 Following the publication of the CLRC’s report, the campaign to modify the right to silence continued with the Commissioner of Metropolitan Police criticising the right to silence in public addresses in 1972 and 1973.53
2.21 The Royal Commission on Criminal Procedure reported in 1981.54 The Commission proposed that the existing law be retained.55 A criminal justice reform package based on the Commission’s report was implemented in England in 1984.56 This package of reforms included the introduction of a duty solicitor scheme, providing suspects with a substantive right to legal aid during police questioning.
2.22 In 1987, legislation was passed which compelled persons to respond when questioned by members of the Serious Fraud Office.57 In May 1988, the Home Office established the Home Office Working Group on the Right to Silence. The Group’s terms of reference were to advise the Government “on how to change the law, not whether or not in principle some form of change was justified”.58
2.23 In November 1988, the law of Northern Ireland was modified by an Order in Council. The amendments permitted the jury to draw strong adverse inferences from the exercise of the right to silence when questioned by police or at trial, and allowed the trial judge to direct the jury accordingly.59 The justification advanced for this measure was that it was a necessary response to terrorist suspects trained in counter interrogation techniques exploiting the right to silence when questioned by police and raising “ambush defences” at trial.60
2.24 The Working Group on the Right to Silence published its report in 1989.61 The Group recommended adopting the proposals of the CLRC, subject to several safeguards for suspects.62 Before any action was taken on the Group’s recommendations, the right to silence became an issue in a series of widely publicised miscarriages of justice involving terrorist offences in Northern Ireland.63
2.25 The Royal Commission on Criminal Justice was established in 1991 as a result of these miscarriages of justice.64 The Commission published its report in 1993. A majority of the Commission recommended that the existing position be retained.65 However, the law relating to the right to silence in the United Kingdom was substantially modified in 1994.66
Australia
2.26 The law relating to the right to silence has also been considered on several occasions by Australian law reform agencies. The Australian Law Reform Commission (“ALRC”) published its interim report on criminal investigations in 1975,67 recommending retention of the existing law in relation to silence when questioned by police.68 The ALRC recommended statutory recognition of this right and a statutory requirement that suspects be notified of this right.69
2.27 The ALRC published its interim report on evidence in 1985.70 The ALRC recommended codification of the existing law in relation to silence when questioned by police.71 The ALRC also recommended permitting judicial comment on the exercise of the right to silence at trial. It recommended that the judge be prohibited from suggesting that the defendant failed to give evidence because he or she was guilty of the offence concerned.72 The ALRC recommended that the prosecution be prohibited from commenting to the jury on the defendant’s failure to give evidence.73 Two years later, the ALRC published its final report on evidence, reiterating these recommendations.74
2.28 The New South Wales Law Reform Commission (“the NSWLRC”) has also considered the law relating to the right to silence when questioned by police, and at trial. The NSWLRC published its report on evidence in 1988,75 recommending that if the defendant raised the fact of his or her silence at trial as an issue in the trial, the prosecution, but not the trial judge, be permitted to comment to the jury on the adverse inferences which the jury could draw from the defendant’s silence.76 The NSWLRC also recommended that the defendant and the jury be informed by the trial judge that the defendant has a choice of giving or not giving evidence.77
2.29 The NSWLRC published its report on criminal procedure in 1990,78 recommending that no adverse inference be permitted from a refusal to answer police questions or participate in police investigations.79
2.30 The Criminal Law and Penal Methods Reform Committee of South Australia published its report on criminal investigation in 1974,80 recommending that in deciding guilt, the tribunal of fact be entitled to draw “such inferences as seem to it to be proper” from the defendant’s silence when questioned by police.81
2.31 The Committee of Inquiry into the Enforcement of Criminal Law in Queensland published its report in 1977.82 The Committee adopted the recommendations of the CLRC in relation to the right to silence.83
2.32 In May 1997, the New South Wales Police Commissioner called for a review of the right to silence.84 The New South Wales Director of Public Prosecutions has also supported some relaxation of the right.85
2.33 In addition to the Commission’s review, the law relating to the right to silence is currently under review in Victoria, Western Australia and the Northern Territory.86
FOOTNOTES
1. 1, 2 Phillip and Mary c1 3; 2, 3 Phillip and Mary cl 10; J Wigmore, Evidence in Trials at Common Law (McNaughton Rev, Little Brown, Boston, 1961) at para 2250; D Harvey, “The Right to Silence and the Presumption of Innocence” [1995] New Zealand Law Journal 181 at 182; S Odgers, “Police Interrogation and the Right to Silence” (1985) 59 Australian Law Journal 78 at 83.
2. M Weinberg, “The Right to Silence — Sparing the Judge From Talking Gibberish”, paper presented at session 24 of the 30th Australian Legal Convention (Melbourne, 18-21 September 1997) at 4; CR Williams, “Silence in Australia: Probative Force and Rights in the Law of Evidence” (1994) 110 Law Quarterly Review 629 at 630-631.
3. CR Williams at 630.
4. Working Group on the Right to Silence, Report of the Working Group on the Right to Silence (London, 1989) at 8.
5. Summary Jurisdiction Act 1848 (11 & 12 Vict.).
6. J Wood and A Crawford, The Right of Silence (The Civil Liberties Trust, London, 1989) at 7.
7. R v Voisin [1918] 1 KB 531 at footnote 3; Odgers (1985) at 83; F Neasey, “The Rights of the Defendant and the Interests of the Community”, paper presented at the 15th Australian Legal Convention (Brisbane, 16-22 July 1969) at 31.
8. R v Voisin [1918] 1 KB 531.
9. Home Office, Home Office Circular 89/1978 (London, 1978).
10. Royal Commission on Criminal Justice, Report of the Royal Commission on Criminal Justice (London, 1993) at 50.
11. Wigmore at para 2250; I Alger, “From Star Chamber to Petty and Maiden: Police Attitudes to the Right to Silence”, paper presented at session 24 of the 30th Australian Legal Convention (Melbourne, 18-21 September 1997) at para 9; Weinberg at 3-4; T O’Gorman, “Right to Silence”, paper presented at session 24 of the 30th Australian Legal Convention (Melbourne, 18-21 September 1997) at 1; K Marks, “‘Thinking Up’ About the Right of Silence and Unsworn Statements” (1984) 54 Law Institute Journal 360 at 370-371; Wood and Crawford at 5-6; CR Williams at 629-630; Justice Evidence Committee, The Accused as a Witness (London, 1968) at 1; S Greer, “The Right to Silence: A Review of the Current Debate” (1990) 53 Modern Law Review 709 at 710 and 711; J Michael and B Emmerson, “The Right to Silence” (1995) 1 European Human Rights Law Review 4 at 5; S Bronitt and M Ayres, “The Administration of Criminal Justice and International Human Rights Law: A Legal Practitioner’s Guide” in D Kinley (ed), Human Rights in Australian Law: Practice and Potential (forthcoming, Federation Press, 1998).
12. Odgers (1985) at 83.
13. Wigmore at para 2250.
14. 16 Car I, cl 10, 11.
15. Harvey at 181.
16. Harvey at 181; Marks at 371; Weinberg at 5 suggests that this was actually a benevolent step designed to enable the defendant to avoid exposure to eternal damnation for perjury.
17. Wood and Crawford at 5.
18. Greer (1990) at 710-711, citing L Levy, Origins of the Fifth Amendment (OUP, New York, 1968).
19. Greer (1990) at 710, citing M McNair, “The Early Development of the Privilege Against Self Incrimination” (1990) 10 Oxford Journal of Legal Studies 66.
20. Criminal Law Revision Committee, Evidence (General) (Report 11, London, 1972) at para 21; see paras 2.2-2.6.
21. Marks at 372; Criminal Law Revision Committee at para 102; see para 2.14.
22. Criminal Evidence Act 1898 (61 & 62 Vict.) s 1.
23. Criminal Evidence Act 1898 (61 & 62 Vict.) s 1.
24. S Nash, “Silence as Evidence: A Commonsense Development or a Violation of a Basic Right?” (1997) 21 Criminal Law Journal 145 at 146; contra Michael and Emmerson at 6.
25. Criminal Evidence Act 1898 (Eng) s 1(b).
26. Criminal Evidence Act 1898 (Eng) s 1(h).
27. Criminal Evidence (Northern Ireland) Order 1988 (Eng); Criminal Justice and Public Order Act 1994 (Eng) s 34-38, 168; see paras 2.23, 3.17-3.24 and 5.15-5.21.
28. Criminal Law and Evidence Amendment Act 1891 (55 Vict. No 5).
29. Criminal Law and Evidence Amendment Act 1891 (55 Vict. No 5) s 6.
30. R v Kops (1893) 14 LR (NSW) 150.
31. Accused Person’s Evidence Act 1898 (NSW) s 1; replaced in 1900 by the Crimes Act 1900 (NSW) s 407 which was in the same terms.
32. Crimes Act 1900 (NSW) s 404A, inserted by the Crimes Legislation (Unsworn Evidence) Amendment Act 1994 (NSW) s 3.
33. Evidence Act 1995 (NSW) s 89; see para 3.8.
34. Evidence Act 1995 (NSW) s 20; see para 5.3.
35. See also Constitution of India, a 20(3); Constitution of Papua New Guinea, Art 37(1).
36. Bram v United States (1897) 168 US 532; Wan v United States (1924) 266 US 1; Miranda v Arizona (1966) 384 US 436.
37. Charter of Rights and Freedoms s 7.
38. R v Herbert (1990) 57 CCC (3d) 1; R v Chambers [1990] 2 SCR 1293.
39. Charter of Rights and Freedoms s 11(c).
40. Canada Evidence Act s 4(6); R v Noble [1997] 1 SCR 874.
41. Justice Evidence Committee, The Accused as a Witness (London, 1968).
42. Justice Evidence Committee at 3 and 4.
43. Justice Evidence Committee at 4-5.
44. Justice Evidence Committee at 4-5.
45. Justice Evidence Committee at 5.
46. Criminal Law Revision Committee, Evidence (General) (Report 11, London, 1972).
47. Criminal Law Revision Committee, Draft Criminal Evidence Bill cl 1(1) and (2) and paras 28-52.
48. Criminal Law Revision Committee at para 30. The minority agreed in general with the recommendations of the majority, but recommended delaying implementation until tape recording of interviews was an established procedure: at para 52.
49. Criminal Law Revision Committee, Draft Criminal Evidence Bill cl 5 and paras 108 to 113.
50. Criminal Law Revision Committee at para 110.
51. Criminal Law Revision Committee, Draft Criminal Evidence Bill cl 5 and paras 108 to 113.
52. Greer (1990) at 715; Royal Commission on Criminal Procedure, Report of the Royal Commission on Criminal Procedure (London, 1981) at paras 1.27 and 1.31.
53. R Mark, “The Disease of Crime: Punishment or Treatment” [1972] Royal Society of Medicine at 6 and 13 (public lecture) and R Mark, “Minority Verdict”, The Listener, 8 November 1973 (public lecture).
54. Royal Commission on Criminal Procedure, Report of the Royal Commission on Criminal Procedure (London, 1981).
55. Royal Commission on Criminal Procedure. Silence when questioned by police: at para 4.52 and see paras 4.48-4.53. Silence at trial: at para 4.66 (majority recommendation) and see paras 4.63 to 4.66.
56. Police and Criminal Evidence Act 1984 (Eng).
57. Criminal Justice Act 1987 (Eng) s 2. The Act makes it an offence to refuse to answer questions asked by members of the Serious Fraud Office. The maximum penalty is 6 months imprisonment. The Act provides that the answers given cannot be used against the person subsequently unless the person changes his or her story.
58. Working Group on the Right to Silence at para 50.
59. Criminal Evidence (Northern Ireland) Order 1988 (Eng).
60. Michael and Emmerson at 7; see para 3.45.
61. Working Group on the Right to Silence, Report of the Working Group on the Right to Silence (London, 1989).
62. Working Group on the Right to Silence at para 126.
63. G Griffith, The Right to Silence (NSW Parliamentary Library Research Service Briefing Paper No 11/97, Sydney, 1997) at 21.
64. Royal Commission on Criminal Justice at 1.
65. Royal Commission on Criminal Justice. Silence when questioned by police: at 54 and see 50-55. Silence at trial: at 56 and see 55-57.
66. Criminal Justice and Public Order Act 1994 (Eng) s 34-38, 168; see paras 3.17-3.24 and 5.15-5.21.
67. Australian Law Reform Commission, Criminal Investigation (Report 2 (Interim), 1975).
68. Australian Law Reform Commission (1975) at para 150 and see paras 146-150.
69. Australian Law Reform Commission (1975) at para 344 and see paras 142 and 146-150.
70. Australian Law Reform Commission, Evidence (Report 26 (Interim), 1985).
71. Australian Law Reform Commission (1985) Draft Evidence Bill cl 76 and vol 1 at paras 756-758.
72. Australian Law Reform Commission (1985) Draft Evidence Bill cl 17 (7) and vol 1 at paras 194-199.
73. Australian Law Reform Commission (1985) Draft Evidence Bill cl 17 (7) and vol 2 at paras 11-14.
74. Australian Law Reform Commission, Evidence (Report 38, 1987) Draft Evidence Bill 1987. Silence when questioned by police: cl 78 and para 160. Silence at trial: cl 23 and paras 69-73.
75. New South Wales Law Reform Commission, Evidence (Report 56, 1988).
76. New South Wales Law Reform Commission (1988) Evidence Bill 1988 cl 23 and para 2.32. The Commission recommended preserving the trial judge’s power to comment on prejudicial material introduced by the prosecution by way of comment on the defendant’s silence.
77. New South Wales Law Reform Commission (1988) Evidence Bill 1988 cl 29(2)(b) and para 2.18.
78. New South Wales Law Reform Commission, Criminal Procedure — Police Powers of Detention and Investigation After Arrest (Report 66, 1990).
79. New South Wales Law Reform Commission (1990) at 117 and 120-123.
80. Criminal Law and Penal Methods Reform Committee of South Australia, Criminal Investigation (Report 2, 1974).
81. Criminal Law and Penal Methods Reform Committee of South Australia at 106-107 and see 100-102.
82. The Committee of Inquiry into the Enforcement of Criminal Law in Queensland, Report of the Committee of Inquiry into the Enforcement of Criminal Law in Queensland (1977).
83. The Committee of Inquiry into the Enforcement of Criminal Law in Queensland at para 194 and see paras 189 to 196.
84. T Harris, “Ryan Calls for Court Overhaul” The Australian (29 May 1997) at 5.
85. “Remaining Silent” (editorial) The Age (25 August 1997).
86. J MacDonald, “AG Backs Review of Right to Silence” The Age (26 March 1998); B Pheasant, “Right to Silence Comes Under Review” Australian Financial Review (19 November 1997).
