Nevertheless, it remains an important protection against oppressive and misleading questioning, particularly for the weak and vulnerable. Abolishing the right - and placing greater pressure on suspects to talk - is likely to lead to more false confessions. Retaining it should encourage the police to increase the search for evidence from an independent source.
Abolition would also bring serious practical consequences. You cannot force a suspect to speak; therefore you have to punish the silence by invoking the uncertain legal concepts of 'corroboration' and 'adverse inferences'. In other words, the suspect is penalised by the dangerous device of letting silence prove, or help to prove, guilt. A weak and unsatisfactory case may be propped up to secure a conviction by the negative evidence of silence. In Northern Ireland, where the right to silence was abolished in 1988, this approach to proving guilt has been controversial and unevenly applied in the courts.
Finally, there is a real point of principle at stake. The right to silence reflects the age-old British law that the State must prove guilt by its own evidence and not out of the mouth of the accused - a law adopted and respected by many other nations, most notably in the famous Fifth Amendment to the United States Constitution. This principle should not be thrown away for the sake of a few bad cases and political expediency.
The Civil Liberties Trust
4 FebruaryReuse content