The Right to Remain Silent in Criminal Law

UK criminal proceedings state that any accused person should be treated as innocent until proven guilty. It is the role of the prosecution team to prove beyond a reasonable doubt that a crime has occurred and that the defendant was involved. An accused person is not required to prove anything, and this means that there is no need for them to speak to establish their innocence. Additionally, all people have a human right to remain silent.

Recent parliamentary developments have led to a number of rules that result in a lack of response from an accused person to direct questioning from law enforcers to be treated as evidence of their guilt. The following article describes the right to remain silent more fully, including failure to testify, inferences and jury considerations.

Accused Person's Failure to Testify

The Criminal Justice and Public Order Act 1994 has modified the historical right of a defendant's choice not to testify. Section 35 of the act gives authorisation to the court and a jury to conclude inferences from the accused's decision. This means that the court is entitled to consider a defendant's failure to testify or silence in response to questions as an admittance of guilt, should they see this as a likely and proper surmise.

The law states that an adverse inference can only be concluded if the defendant has received a warning from the court of the results of them not giving evidence or remaining silent, or if the accused has stated that they will provide evidence and then later refuses to do so.

In some instances, the law recognises that a defendant may be justified in refusing to answer all questions or refusing to provide evidence. This will only be the case for the following justifiable reasons:

• The grounds of privilege
• Because the evidence is excluded by another statute
• Because the court determines that the defendant need not answer a question

Which inferences can be drawn by a court?

A court can draw inference by a defendant's silence to conclude guilt only. This means that remaining silent cannot be used to strengthen a defence case but can boost a prosecution's standing. Section 35 of the Criminal Justice and Public Order Act 1994 sets out that a magistrate must summarise a trial with acknowledgement of the accused's failure to testify. In cases that are brought before a jury, the judge is entitled to direct the jurors to recognise and consider the silence of the defendant by way of determining guilt.

The Response of a Jury to a Defendant Remaining Silent

The jury can be given direction by a judge in relation to a defendant remaining silent throughout a court case. The Judicial Studies Board states that such direction should only be given when it contains details relating to the following:

• The defendant has the right not to provide any evidence, but they have been warned that their silence could lead to a jury drawing inferences.
• Guilt cannot be proven by a failure to give evidence alone, but acts of silence can support the decision as to whether the accused is guilty.
• The jury must acknowledge and review any reason that has been put forward by the defence team for the accused to remain silent. If the jury rejects the reason given, they may draw an inference.

A jury is therefore not entitled to convict a defendant based on their silence during court proceedings alone. However, when a defendant makes use of their right to remain silent, they must be aware that their failure to testify or answer can act as supporting evidence to a prosecution team.