Curtailment of the right to silence

The right of silence, long considered the most fundamental right of a suspect, was curtailed by the Criminal Justice and Public Order Act 1994. This permits the court hearing the charge against you to draw such inferences as appear proper from the fact of your silence in the following circumstances:

  • Failure to mention a fact when questioned under caution before charge which is relied on in your defence.
  • Failure on being charged with an offence or informed of likely prosecution, to mention a fact which it would have been reasonable for you to mention at the time.
  • Failure or refusal to account for objects, substances or marks found on your person, in or on your clothing or otherwise in your possession, in the place where you were arrested.
  • Failure or refusal after your arrest to account for your presence at a place at or about the time the offence is alleged to have been committed.
No inferences may be drawn, however, if you were not given an opportunity to consult a solicitor prior to being questioned, charged, informed of a prosecution, or requested to explain the matters referred to above. The caution in these cases is differently worded from that stated below. It is simply ‘you do not have to say anything, but anything you do say may be given in evidence’.

Before inferences can be drawn in the last two cases the officer should first have explained in ordinary language, amongst other things, the nature of the offence, the possibility of adverse inferences being drawn and that a record is being made of the interview which could be used in the trial. This is in addition to the caution that is now worded as follows:

‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’

This caution must be given before any questioning of someone who is suspected of committing an offence about his or her involvement in the offence. You should normally be cautioned on arrest and before any interviewing or continuation of an interview. If you are charged, you should be cautioned in the same way, but if you are questioned after charge, the caution is simply that anything you say may be used in evidence but that you do not have to say anything (as above). This is because there is no provision in the Criminal Justice and Public Order Act 1994 for inferences to be drawn from silence after charge.

The restrictions introduced by the Criminal Justice and Public Order Act 1994, have been reviewed many times by the courts. The European Court of Human Rights regards any inroads into the right of silence very seriously under Article 6 of the Convention (the right to a fair trial), and there have been many challenges to the provisions of the Criminal Justice and Public Order Act 1994.

You cannot be convicted of an offence solely on the basis of your failure or refusal to answer questions or furnish information.
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