ABSTRACT
The right of silence and the privilege against self-incrimination are ‘two closely related but discrete rights’ (Jennings 2001:207). Some (notably the ECtHR) use the terms interchangeably, but they vary in scope, have differing rationales and are protected to differing extents. The right of silence refers only to spoken communication, whereas the privilege can apply more widely to compulsory questioning by inspectors (Saunders v UK 1997), the requirement to produce documents (Funke v France 1993; JB v Switzerland 2001) or even to regurgitate a bag of cocaine (Jalloh v Germany 2007). The right of silence applies to any verbal statement, not just an incriminating one, thus protecting all suspects, whether guilty or innocent, from having to answer questions (the innocent cannot incriminate themselves by answering truthfully). A ‘privilege’ implies favourable treatment, whereas a ‘right’ is an entitlement that makes no judgment as to the guilt or motivations of the accused but ‘denotes an interest protected as an expression of basic values’ (Greer 1990:710). Suspects may decline to answer police questions or to testify for a number of reasons unrelated to their guilt, discussed below.
