Right to Remain Silent in the UK
You may have heard about the Right to Remain Silent through many depictions in popular media. With some important differences from the more familiar American version, the Right to Remain Silent in UK law offers protection for accused individuals so they can avoid incriminating themselves during interrogations and trials.
Not unlike its American counterpart, those arrested or accused of a crime in the UK will be issued the following caution, informing them of their right to remain silent and of the consequences of choosing to do so:
“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.”
It is important to understand your rights and use them correctly under pressure. If you have been accused of a crime and are facing an investigation, it is imperative to seek expert legal advice immediately.
What is the right to remain silent?
One of the fundamental concepts for the British legal system is that a defendant is innocent until proven guilty beyond reasonable doubt. It is the duty of the prosecution to provide evidence of the defendant’s guilt.
The Right to Remain Silent exists as a consequence of this. The defendant does not have to prove or disprove facts during a trial or interrogation. The accused is not required to answer any question, confirm any statement, nor testify in a trial at all.
As with many laws that offer protection to accused individuals, a compromise must be made between ensuring a fair legal process for defendants and the safeguarding of the general public.
While any defendant holds the right to not answer questions during interrogation or examination, failure to do so may hurt their defence. The Judge and the Jury are allowed to draw an adverse inference from a failure to disclose information and evidence.
Your rights and duties regarding your Right to Remain Silent may be confusing, especially during a complicated and taxing time such as entering an interrogation or trial. Our solicitors are available 24 hours a day, 7 days a week to support you with expert legal advice, and will help you reach the best possible outcome for your case.
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History of the right to remain silent
The Right to Remain Silent is the result of the distrust the judiciary system grew towards police officers’ methods of obtaining information from those accused of a crime. As the methods of interrogation were not properly monitored, confessions started to be less and less trustworthy. The feeling of distrust towards the law enforcement’s procedures led to the introduction of the Judges’ Rules in 1912. These aimed to replace, unify and regulate the guidance and methods used by the police force.
Failure to follow the set of rules it outlines may lead to evidence being discarded by the Judge. However, it should be mentioned that the Judges’ Rules was simply a code of conduct directed at the authorities and not, in itself, part of the UK law.
These rules would go on to be replaced by Code C under the Police and Criminal Evidence Act 1984. The Act carries the same guidelines of best practice regarding the admissibility of evidence in a trial.
These originally stated that:
- The police could question any person with the aim of discovering whether - and by whom - an offence was committed.
- The police were required to provide a caution to individuals against whom they held evidence of guilt.
- The police were required to provide a caution to individuals who had been charged, and could not proceed with further questioning - except in particular circumstances.
- An updated record of questioning was required to be kept.
Additional guidelines outlined best practices for procedures such as formal written statements, access to defence counsel, and regarding questioning of minors and foreigners.
These original rules were subject to expansions and amendments over the years, culminating in the introduction into UK law with the Police and Criminal Evidence Act 1984 (PACE).
Can I remain silent during an interrogation?
It is your right under UK law to remain silent or refuse to answer questions during a police interrogation, and throughout a temporary period of custody.
However, it is important to know the right of the court to draw adverse inference applies to police interrogations. This is stated in Section 34 of the Criminal Justice and Public Order Act 1994.
This means, should you withhold information at this stage, and later rely on that information during a trial, the court could use your silence during the interrogation to infer guilt on your part. Choosing to remain silent during questioning can hurt your defence, and should only be done with clear justification.
If you have been asked to attend an interview under caution, or require legal representation at the police station following an arrest, it is crucial you seek the most competent legal advice available to you.
Contact our experienced general crime solicitors, and one of our advisors will be available to help you 24 hours a day, at no charge at the point of delivery.
Can I remain silent during a trial?
You have the right to a fair trial, as outlined in Article 6 of the European Convention on Human Rights. A key part of your right to a fair trial is your protection from being compelled to answer questions in a trial.
You may choose not to testify in your trial at all, although this can also be used as evidence of your guilt by the court and jury. Section 35 of the Criminal Justice and Public Order Act 1994 provides the court with the right to draw adverse inferences from a defendant’s unjustified refusal to answer questions, produce relevant evidence, or testify.
Adverse inferences may only be drawn in two instances:
- The defendant has been warned of the consequences of refusal to answer questions or give evidence
- The defendant had stated they would provide evidence, and fails to do so in court
In any case, refusal to answer must be justified. There are three main types of justification for failure to answer questions or disclose information:
- The answer would be protected by privilege
- The information included in the answer would be invalidated by evidence already admitted
- The court has ruled not to answer or produce the evidence in question
Inferences regarding a defendant’s silence may only be drawn regarding his guilt, and not as a reinforcement of the prosecution’s arguments. However, the prosecution is allowed to comment on a defendant’s refusal to answer or testify.
The jury may receive directions in the event that the accused refuses to testify. Directions should include:
- Acknowledging that the accused has been made aware of the consequences of failure to testify
- Stating that failure to give evidence is not enough to prove guilt, but may be considered a factor
- Considering a possible justification by the defendant regarding their refusal to answer
The jury will decide whether it is fair to hold the accused accountable for their failure to answer, give evidence or testify. This will not be enough to prove the defendant’s guilt, but may sway the jury’s judgement towards a conviction.
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