Introduction

The right of silence (in broad terms, the right of the accused to refuse to answer questions before or during trial without sanction) has a long, if somewhat obscure, history. It is a controversial provision that has been both celebrated as a benchmark of justice and castigated as a refuge of criminals. Supporters of the right regard it as protecting against miscarriages of justice, as well as a practical and symbolic expression of the presumption of innocence (Greer 1994b; Leng 1993; RCCP 1981; RCCJ 1993). In contrast, Jeremy Bentham (1825:241) famously argued that if a team of criminals was assembled to design a legal system in its own interests, the right of silence would be the first feature to be included for ‘[i]nnocence never takes advantage of it; innocence claims the right of speaking, as guilt invokes the privilege of silence’. Such a rogues’ charter has yet to be drafted, yet the privilege against self-incrimination has been included in no fewer than 48 national constitutions, including the United States of America, India and South Africa (Bassiouni 1992-93:265). In countries where the right of silence is not protected by a constitution, it has been secured by other means, such as inclusion in the criminal procedure code or statutes, as in France, Germany and most of Australia. The right was a common law creation in England where there was held to be an ‘ancient and deep-rooted privilege against self-incrimination’ (R v Director of SFO ex parte Smith 1993 at 42). The right of silence features in international treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights. It is included in the founding statutes of the international criminal court and the ad hoc international crimi nal tribunals for the former Yugoslavia and Rwanda. Whilst the right is not mentioned explicitly in the European Convention on Human Rights (ECHR), the European Court of Human Rights (ECtHR) declared that the right of silence and the related privilege against self-incrimination are viewed as ‘generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6’ (Saunders v UK 1997 at 314). Every subsequent relevant international instrument includes

the privilege against self-incrimination as part of the right to a fair trial (Roberts and Zuckerman 2010:555).1 In 1994, the Third Optional Protocol to the ICCPR was drafted, with the aim of guaranteeing under all circumstances the right to fair trial. It sets out that ‘silence by the accused may not be used as evidence to prove guilt and no adverse consequences may be drawn from the exercise of the right to remain silent’. This definition was endorsed by the United States-based advocacy group, Lawyers Committee for Human Rights (2000). It might be thought, therefore, that by the late twentieth century, the case for the right of silence had been won; that, as with the prohibition on torture and the entitlement to legal advice, there was a reasonably settled understanding of the requirements of a modern criminal justice system – but this was not so. There is an ebb and flow in support for due process rights, and fear of crime or terrorism can be a more powerful political weapon than support for an abstract notion, or concern about wrongful convictions. The symbolic value of the right has been acknowledged by its defenders (Dixon 1991a; Greer 1990) but what has not been considered previously is that it is also freighted with symbolism for its detractors. Despite its international prevalence and historical antecedents, a retrenchment regarding the right of silence has occurred, or is underway, in countries around the world, and much of that has to do with what has happened in England and Wales. The right of silence was exported from – or imposed by – Britain2 across much of the globe. The English proposals to curtail the right of silence (Criminal Law Revision Committee 1972) and legislation to do so in the Criminal Justice and Public Order Act 1994 (CJPOA) caused shockwaves and restrictions to the right around the world. The CJPOA has had a continuing domestic effect as the courts have widened its parameters and it arguably facilitated the passage of subsequent evidential changes that were less favourable to the defence. The right of silence thus remains very much a live issue. Whilst the right of silence has been analysed extensively in theoretical and legal terms, this book provides the first comprehensive, empirically informed analysis of the effects of its curtailment. The work is located in the broader international context concerning the right of silence debates, but the primary focus is upon the effects of ss34-38 of the CJPOA. These sections allow inferences to be drawn from the accused’s: failure to mention part of the defence case under police questioning or charge; refusal to answer certain questions; and failure to testify. Whilst this legislation was

contested fiercely at the time, there has been little evaluation of the changes in practice, other than a single Home Office ‘before and after’ study (Bucke et al. 2000) and of course, detailed scrutiny of the developing case law. Analysis of the judgments or quantitative studies of the prevalence of ‘no comment’3 interviews or defendants not testifying, whilst important, are insufficient. Such research cannot capture the symbolic importance of the CJPOA, its interaction with the working practices of those responsible for its implementation and its impact upon the broader culture of the criminal justice system. In this book, these wider effects of the CJPOA are assessed through a review of the debates surrounding its introduction, consideration of the associated research and analysis of developments in the case law. This is complemented by a programme of in-depth interviews and questionnaires conducted with a range of criminal justice practitioners in one region of England shortly after the provisions came into effect (see Methods for details). Easton argues that ‘[t]he right to silence in English and Amer ican law has been shaped by policy issues, questions of utility and moral principles’ (Easton 1991:1). This book charts how these considerations compete: the principled aims; the politically expedient incursions; and the practical effects of curtailing the right. The first part of the book explores the tension between the ideals of the right of silence and the criticisms of its opponents. Chapter 1 explores the obscure historical origins of the right, the principles underlying its exercise and its enduring appeal. It shows that the right of silence is still an important, aspirational first principle for ‘new’ legal regimes, including the ad hoc international criminal tribunals and nascent democracies such as South Africa. Those charged with considering the criminal justice process from first principles also tend to recommend it, largely because of its association with the presumption of innocence (see the two Royal Commissions in England and Wales, RCCP 1981; RCCJ 1993; Australian Law Reform Commission 1987; New South Wales Law Reform Commission 1988 and 2000a; Law Commission of India 2000). Whilst it may be difficult to design a system that does not include the right of silence, a pure system can be difficult to defend in practice. Once exceptions are admitted, however, it can be challenging to defend the principle against the lure of expedient concessions. Chapter 2 considers the early incursions in England and Wales and how the right of silence became a ‘crime control’ target. The curtailment of the right was portrayed as a response to terrorism and organised crime, but applied to even the most trivial offences. The chapter examines the right of silence debate in the context of contemporaneous events: the conflict in Northern

Ireland, rising crime, industrial disputes and social unrest. The legislation was advanced as a ‘common sense’ reform, designed to re-balance the criminal justice system away from the ‘criminals’ who were supposedly benefiting from its exploitation. In reality, there was little objective evidence that the right of silence was causing undue difficulties in the administration of justice. Rather, the pressure to curtail the right of silence was part of a sustained campaign led by the police at a time of rapidly rising crime rates. It then became part of a backlash against the increased protections given to suspects by the Police and Criminal Evidence Act 1984 (PACE), in particular legal advice. This was driven by the police, certain politicians and senior members of the judiciary. Extravagant and often unsubstantiated claims were made when the CJPOA was introduced. The second part of the book offers an empirically informed exploration of what curtailing the right of silence has meant in practice in England and Wales: its effects on the working practices and occupational cultures of the police and defence solicitors and how the provisions have come to be utilised more boldly in court. Jackson (1994:277) and others have criticised the failure of the courts to consider the ‘procedural context’ in which the right of silence immunities were withdrawn by Parliament. Chapter 3 therefore examines the detention and interviewing of suspects at the police station, the initial context in which suspects decide whether to exercise their right of silence.4 Whilst acknowledging the improvements that have been made in the treatment of suspects, the chapter critiques the premise of the ‘balancing’ argument used to restrict suspects’ rights, by demonstrating the inadequacies in the protections suspects received before the CJPOA and the deficiencies that continue to exist. Few suspects made no comment interviews before the CJPOA, of those who did, almost half were convicted (Leng 1993); even fewer remain silent now (Bucke et al. 2000). The chapter questions the ability of suspects to understand the revised caution and to make informed decisions as to whether or not to remain silent. It is argued that the Act reinforces traditional police expectations about compliant behaviour from ‘good’ suspects, and about the innocent having nothing to hide. This appears contrary to many of the improvements that had been made in police investigative interviewing techniques. Chapter 4 develops the arguments made by Cape (1997) and Leng (2001c) that the most profound effects of the CJPOA have been on the relationship between suspects and their legal representatives. Those advocating

the changes argued that the right of silence should be ceded in part because of the increase in custodial legal representation. This was based on a false premise; less than a third of suspects were legally represented in the police station when the changes were mooted; take-up rates are still below 50 per cent. The quality and adversarialism of this representation (often by paralegals rather than qualified solicitors) has been criticised repeatedly (Baldwin 1993; Bridges and Choongh 1998; McConville et al. 1994). Legal representatives have no formal power in interviews but previously some would use the threat of a no comment interview as a bargaining tool to enforce their clients’ rights or to obtain disclosure of the police case. Representatives now have to assess whether the potential risk of inferences being drawn from a no comment interview, should the case be brought to trial, outweighs the risk of providing the police with information that may be used to charge or convict the client. By making custodial legal advice of potential evidential significance, perhaps requiring representatives to testify why they gave such advice, it is argued that the CJPOA has compromised the lawyer-client relationship, thus further eroding the protective benefits of legal advice. Refusal to testify and the domestic and European human rights case law around ss34-38 CJPOA are the focus of Chapter 5. The CJPOA has generated a great deal of domestic case law, arguably of disproportionate weight to any evidential benefit it has provided (Birch 1999). Whilst the legislation appears to have increased the number of defendants who testify (Bucke et al. 2000), it has had a direct effect in only a small percentage of cases. The dire predictions that the CJPOA would cause miscarriages of justice have not been borne out and it has not made a noticeable difference in terms of increasing charge, plea or conviction rates. It is argued, however, that the CJPOA has had a profound effect upon the prevailing climate in which suspects are investigated and tried. There now exists what Leng (2001a:246) describes as a ‘normative expectation’ that suspects will cooperate in the investigation and trial process. The judiciary has become increasingly emboldened in drawing inferences from silence at the police station; a process assisted by the, perhaps surprising, decision of the ECtHR that the provisions do not breach Article 6, the right to a fair trial provisions in Article 6, per se (Condron v UK 2001). Whilst the Strasbourg decisions have resulted in slight restrictions upon the interpretation of the Act, this ambivalence has allowed the domestic courts to widen the parameters of the legislation in favour of the prosecution (Howell 2003). Inferences are no longer restricted to subsequent fabrication but can be used, in effect if not explicitly, for punitive as well as evidential purposes against suspects for not cooperating with the police at the earliest opportunity. This has essentially made the police interview a part of the trial but without the benefit of the safeguards or the rules of natural justice that attend a fair trial (Jackson 2001a:147). This has reduced the protections offered by

legal representation, as the provision of legal advice to remain silent will not, of itself, protect the suspect from adverse inferences at trial. The Court went even further in Seaton (2010) and allowed incursions into legal professional privilege, previously also regarded as a fundamental protection for defendants (Quirk 2013). Whilst the presumption of innocence remains, the judgment in Howell (2003) suggests a significant judicial shift towards an assumption that the innocent have nothing to hide. This book concludes that the right of silence, for a complex mix of political, legal and symbolic reasons, is a keystone of criminal justice. Just as Chapter 1 shows how the right had become part of a virtuous circle of international standards, the final chapter examines the destabilising effect of the English debate across much of the common law world. Rather than using traditional notions of ‘policy transfer’ (Dolowitz 2000), I argue that the initial plans to curtail the right of silence (CLRC 1972) caused a policy tremor that led to the right being curtailed in Singapore, Malaysia and Ireland. The CJPOA drew upon legislation from Northern Ireland and the Republic of Ireland. Other countries in turn drew on the English experience to change (Ireland again, parts of Australia) – or at least reconsider – their approach to the right of silence (India and states in Australia). English law still has persuasive effect in many common law jurisdictions and a backlash against suspects’ rights starting from the ‘Mother of Parliaments’ proved influential – even in countries that retained the right of silence. The endorsement of the English and Strasbourg courts allowed curtailing the right to become almost a hallmark of an advanced legal system. Their validation also facilitated changes in countries with fewer protections for suspects. David Garland has explored how the UK and USA governments reacted to their inability to reduce crime by ‘acting out’ through aggressive law enforcement measures and harsher sentencing policies. The object of such policies and the accompanying punitive rhetoric were primarily expressive, ‘to denounce the crime and reassure the public’ (Garland 2001:133). Criminal evidence rules have played a significant and underexamined role in the spread of this ‘culture of control’. The CJPOA marked a new departure in the prosecution of crime in England; a declaration that defendants have too many rights and should cede some of them in order to restore equilibrium. This re-balancing narrative, which differed significantly from how the right of silence argument was framed in other jurisdictions, fed into the ‘populist punitiveness’ (Bottoms 1995) of criminal justice policy that subsequently took hold, coupled with subsequent legislation and an increasingly managerialist approach by the courts. Whilst the CJPOA has had limited direct effects upon the outcome trials, it has had profound consequences at the police station and upon the benefits to suspects of legal representation and far fewer defendants now decline to testify. Suspects’ rights to a fair trial, now guaranteed for-

mally under Article 6 of the ECHR, appear stronger than ever. In reality, however, the working practices of, and relationships between, suspects, the police and legal representatives have been distorted by this legislation, which has made it easier for the prosecution to discharge the burden of proof. In effect, for the first time, suspects are expected to cooperate actively with the investigation and trial process, an assumption of ‘coerced participation’, which runs contrary to the principle that it is for the prosecution to prove its case (Leng 2001c:128). This change has fundamentally altered the legal landscape in ways that were not envisaged by those on either side of the debate at the time. The danger of such a cavalier approach is that, in the face of a continuing need to be seen to be tackling crime, the boundaries of what is acceptable have to be pushed further.