ABSTRACT
The right of silence in England and Wales has never been of merely local interest. For largely historical reasons, English legal decision making carries a disproportionate global influence (Karstedt 2002). Most common law1 systems are based upon the English system, English case law is at least persuasive in many of these courts and most recognise the right of silence. The right of silence was seen as the ‘keystone of criminal justice’ so it is unsurprising that the proposals to curtail the right recommended by the Criminal Law Revision Committee (1972) and enacted by the Criminal Justice and Public Order Act (1994) attracted worldwide attention, condemnation and emulation – in unequal measure. At the time of the CLRC Report, Damaška (1973:507) wrote, ‘Comparative research of criminal justice systems is still in its infancy.’ When the right of silence was curtailed in England and Wales, policy transfer had still not been explored extensively in relation to criminal justice. As late as 2002, Jones and Newburn (2002:179) noted that, whilst there had been significant and influential studies of the interests and ideologies involved in the politics of crime control, ‘we still know remarkably little about how and why criminal justice policy changes, particularly in the UK’. So despite being ‘one of the great criminal justice controversies of the twentieth century’, the influences on and of the English policy on the right of silence were not tracked contemporaneously, and have received surprisingly little attention since. Since the early twenty-first century, an extensive scholarship has emerged about the ‘growing homogenization of criminal justice across western societies, driven in particular by the spread of punitive policies from the USA’ (Muncie 2005:38). This has focused in particular on developments in crime prevention, prison management and sentencing policy (Christie 2000; Garland 2001; Nellis 2000; Newburn 2002; Newburn and Jones 2007) and specific elements of criminal procedure such as the
‘Amer icanization Thesis’ in plea bargaining (Langer 2004). Much has been written about the creation of international criminal courts and tribunals, a convergence between inquisitorial and adversarial systems (Jörg et al. 1995; Jackson 2005), and the European Union principle of mutual recognition. Less attention has been given to the transfer of criminal evidence provisions, and none to the movement of the right of silence. Just as Chapter 1 shows how, by the late twentieth century, the right of silence had become a prerequisite for any credible domestic or international criminal justice system, this concluding chapter considers how the English experience has influenced policy in other jurisdictions, and examines how its effects continue to reverberate both domestically and across the common law world. As discussed below, every country that considered curtailing the right of silence referred directly to the CLRC or CJPOA. The right of silence could, therefore, be looked at in direct policy transfer terms (‘a process by which knowledge of policies, administrative arrangements, institutions and ideas in one political system (past or present)’ is used in the development of similar features in another [Dolowitz 2000:3]). Just to map the ‘transmission’ of the right of silence, however, is to miss what is interesting and perhaps unique about it. A range of metaphors has been applied to the movement of policies between countries. Twining (2009:271) examines ‘reception’, ‘transplants’, ‘spread’, ‘expansion’, ‘transfer’, ‘exports and imports’, ‘imposition’, ‘circulation’, ‘transmigration’ and ‘transposition’ before settling on ‘diffusion’. Langer (2004:5) criticises the widely used ‘legal transplant’ metaphor for its failure to account for the transformation that legal ideas and institutions may undergo when they travel between legal systems, preferring ‘legal translation’. Yet none of these terms fully captures the effects of the right of silence debate, which had much broader ramifications which were felt even in countries that ultimately decided not to follow England. As discussed below, this was neither a one-off nor a one-way transfer. I argue rather that the curtailment of the right of silence was a legal tremor – a build-up of pressure (rising crime rates, influential lobbyists and political sensitivities) that led to a shift in the tectonic plates of the criminal justice system in England and Wales. The protests that followed the recommendation of the CLRC to curtail the right of silence in 1972 suppressed the debate in England, but the fissures spread to Australia, and found an outlet in Singapore, Malaysia and then Ireland. The issue then returned with much greater effect in first the Criminal Evidence (Northern Ireland) Order 1988, then the quake of the CJPOA 1994 (see Chapter 2). This sent shockwaves around the world, including in Ireland and Australia again, India and New Zealand, leading to further curtailment of the right in countries with fewer protections for suspects than England. Even where it was decided to retain the right of silence, previously solid fixtures of the criminal justice system had been destabilised and the boundaries of acceptable ideas for reform had moved.
