Lady Justitia
The Right to Silence?

That right to conceal facts

In the United Kingdom and some other jurisdictions there has been in the last decade reform in the traditional understanding of the right to silence. The change has been that whereas an accused still has a right to silence at the time of arrest, it may now be mentioned in a subsequent criminal trial that a defence presentation, such as an alibi witness, was not first mentioned to authorities at the initial time of questioning.

Unfortunately this development has not enveloped all common law jurisdictions.

For the record everyone in court does not have the right to silence. A witness can be subpoenaed to appear in court and give evidence. If refusing they can be fined and, even jailed in certain circumstances.

The right to silence is not a defence against an accused being put on the rack and forced to confess. For centuries the defendant has had the right to remain silent in court and today there is no one from any quarter challenging that right. What has recently been challenged in certain jurisdictions, and successfully at that, is the right of the accused to conceal certain facts from the jury with regards to how he presented his defence to the police and court.   Previously when an accused, or his lawyer, gave the defence argument in court the jury was not allowed to be informed if that defence was forthcoming from the moment of arrest, or only six months later after long periods of forensic investigation and consultation with his lawyer.

Unfortunately there are legal academics who still believe that the accused should retain that “right” to keep the jury in the dark.

It might reasonably be held that rights refer to being able to manifest one’s autonomy by doing things. The right to speak, to travel, to own honestly acquired property, to associate, to marry, to procreate, to vote.  It seems extremely difficult to understand why we should also have fundamental human rights to evade prosecution or to keep a jury hidden from relevant facts.

 

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