Right To Silence Analysis

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At common law, there exists a number of fundamental rights for those being questioned by police. In this regard, the emergence of the privilege against self-incrimination and the right to silence represents a ‘landmark event in the history of Anglo-American criminal procedure.’ As we shall see, these principles are intrinsically linked to the presumption of innocence and burden of proof. Policy makers in Northern Ireland contended that defendants were afforded too much of an advantage by virtue of these rights and that dealing with the ‘wall of silence’ in the interviewing of terrorist suspects necessitated the curtailment of these rights. After a short discussion on the history of these concepts, the focus in the second part will primarily…show more content…
Pursuant to Article 3, ‘inferences may be drawn from an accused’s failure to mention particular facts when questioned about or charged with an offence’. Article 4 stipulates that ‘an accused person may be called upon by the court to give evidence at his trial, and certain inferences may be drawn if he refuses to do so’. Mirfield, amongst others, argue that the rules curtailing the right to silence ‘require the suspect to be his own betrayer.’ Whether guilty or innocent, Leng submits that the fact that some hardened criminals will remain silent no matter what defeats any claim that ‘silence can be taken as evidence of guilt.’ Due to the strength of the challenges posed by the benefits to the defendant of remaining silent, the NI legislature did not address the possibility that there may be reasons for maintaining silence other than guilt or ambush defences, the ascertainment of which is at the courts’ discretion. For instance, a suspect may be embarrassed to admit their whereabouts; they may be afraid of giving inaccurate information and being punished as a result; they may be suffering from ill-health, a mental or learning disability; or they may be in an intoxicated state at the time of questioning. The minority of the Irish Committee which was established to review the matter…show more content…
Referring to the Murray v UK ruling, Naughton writes that ‘the denial of legal advice that prejudices a suspect’s right to a fair trial may render the police in breach of Article 6 of the European Convention on Human Rights (ECHR). In the England and Wales context, Zander suggested that a solicitor’s advice regarding silence could follow on much as it had been prior to the introduction of the legislation curtailing silence, or that solicitors would be more likely to encourage
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