Although generally considered a cornerstone of British justice, the right of silence has never rested on entirely secure foundations. Having explored how the right of silence came to be regarded as a prerequisite for any credible judicial system in Chapter 1, this chapter examines in some detail how the tide began to turn in England and Wales. A significant imperative was the political desire to ‘do something’ about rising crime. The right of silence is intertwined with the presumption of innocence. Andrew Ashworth (2006:241) identifies four threats to the presumption of innocence in the ‘risk society’ (in which governments prioritise minimising the security threat over individual liberties): confinement, erosion, side-stepping and evasion. These do not map across exactly, but the right of silence faced similar dangers. The police exercised a strong influence in shaping that response. Following the Criminal Evidence Act 1898, which permitted suspects to give sworn evidence at trial for the first time, the English courts at first largely followed the Amer ican approach of not permitting inferences from silence (Williams 1955) and the Royal Commission on Police Powers and Procedure (RCPPP 1929) endorsed the right of silence. The last three decades of the twentieth century, however, saw significant developments. Events are traced in chronological order through legislative incursions; judicial interpretation and a series of official reports: the Criminal Law Revision Committee (CLRC 1972) recommended abolishing the right; the Royal Commission on Criminal Procedure (RCCP 1981) favoured retention; and the Home Office Working Group (HOWG 1989) was directed to investigate how to implement restrictions. After the Criminal Evidence (Northern Ireland) Order 1988 curtailed the right of silence in Northern Ireland, the Royal Commission on Criminal Justice (RCCJ 1993) recommended its retention in England and Wales. These reports are examined in the broader social context in which they operated, including crime rates, social unrest, terrorism and the backlash against the Police and Criminal Evidence Act 1984 (PACE). The academic research relating to the use of the right is examined, and finally the provisions of the Criminal
Justice and Public Order Act 1994 (CJPOA), which curtailed the right of silence in England and Wales, are set out. Zuckerman has described the undermining of the privilege against selfincrimination in English and Amer ican law as ‘a process of attrition’ (Zuckerman 1989a:549). Exceptions swiftly become the norm regarding particular types of evidence or crimes (‘it is clear that statutory interference with the right is almost as old as the right itself ’ (R v SFO ex parte Smith 1993 at 40)). Significant legislative inroads had been made into the right of silence by the requirement that the defence must disclose before trial any alibi (s11 of the Criminal Justice Act 1967) or expert evidence (s81 of PACE) it proposes to call. These obligations were introduced on the basis that it was too difficult for the prosecution to rebut such evidence (or ‘ambush defences’ as they were pejoratively known) without notice and could lead to unmeritorious acquittals. In practice, these statutory incursions made little difference, as the only sanction – of excluding the evidence – was so potentially catastrophic for the defence that judges usually exercised their discretion to allow the evidence to be called (Zander 1996). Other statutes created specific penalties for non-compliance – for example, section 172(2)(a) of the Road Traffic Act 1988 requires the keeper of a vehicle to disclose the identity of the driver in certain circumstances (such as if it has been recorded speeding). Significant extra powers are given to those investigating fraud and serious financial misconduct (see inter alia, s447 of the Companies Act 1985, s219 of the Insolvency Act 1986, s105 of the Financial Services Act 1986, s41 of the Banking Act 1987 and s2 of the Criminal Justice Act 1987). These exceptions were rationalised because of the particular difficulties caused to the prosecution of investigating such offences without the suspect’s cooperation. One of the examples that was cited as a reason for curtailing the right of silence was where a child dies and it is not possible to establish which parent was responsible if both remain silent. Legislation was subsequently introduced of ‘causing or allowing the death of a child or vulnerable adult’ (s5 of the Domestic Violence, Crime and Victims Act 2004). Forty per cent of offences triable in the Crown Court put the onus of proving at least one element of the offence or a statutory defence on the defendant (Blake and Ashworth 1996), which makes it harder for the defendant not to give evidence. For example, s1(1) of the Prevention of Crime Act 1953 provides that ‘[a]ny person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence’ (emphasis added). In summary proceedings, ‘the burden of proving the exception, exemption, proviso, excuse or qualification shall be on [the defendant]’ (s101 of the Magistrates’ Courts Act 1980). This is not a recent mechanism; s4 of the Explosive Substances Act 1883 placed the burden of proving lawful excuse for the possession of explosives on the accused – this was before the accused was allowed to give sworn testimony.