Right to Silence
The right to remain silent and not to incriminate oneself is an inherent part of the concept of a fair trial as recognized under the European Convention on Human Rights.
The common-law position was that the exercise of the right to silence would not constitute obstruction or decrease in the exclusion of duties. The prosecution and the judge must not allow adverse inferences to be drawn from the accused’s silence when questioned by the police.
The right to silence was considerably revised by the Criminal Evidence (NI) Order 1988. Under this legislation, silence before trial may be the subject of adverse inference in court.
When an accused relies on something in their defense which they fail to mention when questioned or charged, and the matter of fact is one which the accused could reasonably be expected to mention, the court may draw such inferences from the failure as it appears proper.
A court may draw inferences as appear proper. If the person fails to account for the presence of an object, substance, or mark on their person or in a place where they were arrested, and if the object, mark, or substance is reasonably believed to be attributable to the person’s participation in the offence by the police, inferences may be drawn from a refusal by a person when arrested to account for their presence in a particular place at the time the offence was committed.
The Codes of Practice under the PACE Order and the Terrorism Act require that persons are warned about the effect of the above articles. In addition, in relation to the two latter grounds, before a police officer questions a person about the matters, he must inform the person that there is reason to believe that what has been found is serviceable to their participation in an offence or that the person’s presence at the time of the alleged offence is attributable to their participation in it. The person may be asked to account for what has been found or for their presence and warned that failure to do so may result in adverse inferences being drawn from the failure as appear proper.
The PACE Code of Practice and Terrorism Act Code of Practice require that police officers refrain from asking questions once a suspect has been charged unless there are exceptional circumstances.
There exists a range of legislation by which a person may be obliged to answer questions or provide information. This ranges from emergency legislation to more mundane road traffic and similar legislation.
It is an offence to fail to disclose, without reasonable excuse, information about acts of terrorism or people involved in terrorism.
The European Court of Human Rights has held that, although the right to silence is a fundamental part of fair procedures under the Convention, the right to silence is not absolute, and courts may take account of silence in situations which clearly call for explanations.
Generally, all persons are bound and can be compelled to answer questions by a court. Failure to answer or answer truthfully is contempt of court.
A person may object to answering a question if it relates to a privileged matter. Legal professional privilege relates to communications between a legal adviser and clients in the courts and seeking legal advice. It also covers communications between a legal adviser and a third party made for the purpose of pending litigation.
Accused persons may give evidence on their own behalf (1923). The PACE Order makes the accused a competent witness allowed to give evidence for the prosecution and for a co-accused. When the charge involves an assault on a spouse, a person under 17, or sexual offences alleged, the accused may be compelled to answer questions.
The right to silence has been modified as above by the Criminal Evidence (NI) Order 1988. It modified the rule right of silence. The court and the jury may draw inferences from the accused’s failure to give evidence at trial or his refusal, without good cause, to answer questions. The accused must be aware that failure to give evidence or answer the question may have this consequence.
A witness may refuse to answer a question if his answer would tend to expose him to prosecution. No adverse inferences to be drawn by the judge or jury from the claiming of privilege.
The Criminal Evidence NI Act 1923 provides that where an accused elects to give evidence, he may be asked questions in cross-examination. However, he may not be asked questions about his character or previous acts if the intention is to damage his credibility unless he gives evidence of his good character or casts imputations on the character of the prosecutor. Witnesses for the prosecution, deceased victims, or those giving evidence against other persons charged in the same proceedings.