The right to silence is a common-law principle that normal tribunals of fact should not be encouraged by judges or prosecutors to conclude that a defendant is guilty merely because he or she has refused to respond to allegations pre-trial or during the trial in the court room. This essay will analyse whether the right to silence is useful as a privilege against self-incrimination, providing a right relating to freedom against arbitrary power, and providing a key component to a right to a fair trial. This essay will then analyse whether the impact that the Criminal Justice and Public Order Act 1994 (CJPOA), Terrorism Act 2000 and Counter-Terrorism Act 2008 has limited the right to silence, while increasing the evidential significance of …show more content…
For instance, Easton provides that, as a privilege against self-incrimination, the right to silence finds its origins in 17th century revulsion against the interrogatory techniques of the Star Chambers . Therefore, one may submit that the right to silence has protected a vulnerable defendant from being unfairly prosecuted by being pressured during the interrogation process.
However, it can be questioned whether the right to silence provided sufficient protection during this time, since records are limited. Thus, it was not until the Criminal Evidence Act 1898 that silence was established as a right and not a necessity by making the accused a competent witness. Furthermore, a team from Birmingham University found that only 2.4 per cent of suspects remained silent in police custody . Therefore, it may be argued that the right to silence is a comparatively weak right , which can be argued is rarely
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Thus, in the 1980s it was quite common for terrorist suspects arrested in Northern Ireland under what is now s. 14 of the Prevention of Terrorist Act 1989 not to say anything . Clive Walker provides that it was a widespread belief among security forces that maintaining silence was evidence of training in anti-interrogation techniques . However, during the 1980s, terrorist activity in England and Wales was much lower than in Northern Ireland . Therefore, it could be argued that the right to silence was not being used to such a detrimental effect on the prosecution process in England and Wales in comparison to Northern Ireland. Although, the metropolitan police cited that there was 27.6 per cent of overall use of the right to silence in police questioning in 1990 .Therefore, it may be suggested that the right to silence was causing the police an issue before the enactment of the CJPOA 1994 . Consequently, the Criminal Law Revision stressed that the balance had swung so far in favour of the defendant that the measure which may have been justified in the past, had now become a hindrance to justice
Defenders of the Miranda decision say that fewer crimes solved are for a good reason. They believe that law enforcement officers were forced to stop coercive questioning techniques that are unconstitutional. Over the years, the Supreme Court has watered down its stance in saying that the Miranda rules are not constitutional obligations, but rather “prophylactic” safeguards intended to insure that officers do not force a confession from a suspect. The need for both effective law enforcement as well as protection of society dictates the need for potential alternatives to the limitations of Miranda that would simultaneously protect the interest of society in effective law enforcement while at the same time providing protection to suspects against unconstitutional force (www.ncpa.org).
Miranda Vs Arizona was a United States Supreme Court case in 1966. The court “ruled that a criminal suspect must make a knowing, intelligent, and voluntary decision to waive certain constitutional rights prior to questioning” (Ortmeier, 2005, 285). This ruling meant that suspects must be aware of their right to remain silent and that if they choose to speak to the police the conversation can be used against them in a court of law. If they do decide to speak under police it must not be under false promises
3. The court stated: "We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
This decision requires that unless a suspect in custody has been informed of his constitutional rights before questioning anything he says may not be introduced in a court of law.
The first appearance of the notion of silence or lack of silence occurs at the first presence of the criminal justice system: the initial meeting with a police officer. During the War on Drugs, it became common for police officers to stop and frisk people, including those without suspicious behavior, in search of drug violations. Although, not against the law, the majority of people do not know that they have the option of declining such a search and refuse to answer any questions. Professor Tracey Maclin conducted a study regarding this phenomenon concluding, “the overwhelming majority of people who are confronted by police and asked questions respond, and when asked to be searched, they comply. This is the case even among those… who have every reason to resist these tactics because they actually have something to hide” (Alexander 66). Therefore, the finding suggests that only a few people do not fear a supposed consequence of not abiding by a police officer’s request. Hence, people remain silent and do n...
Friedman, S. (2014, March 10). You have the right to ... not much: Why are there no 'Miranda rights'
The act of interrogation has been around for thousands of years. From the Punic Wars to the war in Iraq, interrogating criminals, prisoners or military officers in order to receive advantageous information has been regularly used. These interrogation techniques can range from physical pain to emotional distress. Hitting an individual with a whip while they hang from a ceiling or excessively questioning them may seem like an ideal way to get them to reveal something, but in reality it is ineffective and . This is because even the most enduring individual can be made to admit anything under excruciating circumstances. In the Fifth Amendment of the Bill of Rights there is a provision (“no person shall be compelled in any criminal case to be a witness against himself” ) which reflects a time-honored common principle that no person is bound to betray him or herself or can be forced to give incriminating evidence. This ideology of self-incrimination has been challenged heavily over the past s...
Spalek and Imtoual (2007) state that in the aftermath of September 11, 2001 and the following of subsequent terrorist attacks in the UK and Europe, there has been a shift of focus on black minorities to Asian minorities and as a result there has been an increased surveillance amongst Asian and Muslim minority groups. Since the year 2000, numerous contemporary anti-terror laws have been instated the law affecting minority groups the most being most influential the Terrorism Act 2000. The Terrorism Act 2000 affected minority groups by enhancing police powers to investigate terrorism, including wider stop and search powers, and the power to detain suspects after arrest for up to 14 days. (Spalek and Imtoual, 2007). As a result, statistics in Britain in 2002-2003, sugested that under counter-terrorism legislation, stop and searches carried out amongst Asian minorities increased by 302% in a year, in which Hare and Weinstein (2010, p.483) in their literary research on democracy, state that the Muslim Council of Britain claimed that the police are misusing their new enhanced powers and
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you can not afford an attorney one will be appointed to you” This may be differ from state to state as long as the concept is conveyed they was read their rights. Miranda Rights is mandatory across the United States due to the Miranda v. Arizona. In the following will explain what the 3 branches Judicial, Executive, and the Legislative have done to enforce this law or to change it, as well as the effect on the people.
I hope in this paper I have made people more aware of what exactly are the Miranda rights. It is very crucial to understand these incase you are involved in an interrogation sometime in ones life. You have the rights afforded to you under the constitution, and it is important you exercise those rights.
From the moment an innocent individual enters the criminal justice system they are pressured by law enforcement whose main objective is to obtain a conviction. Some police interrogation tactics have been characterized as explicit violations of the suspect’s right to due process (Campbell and Denov 2004). However, this is just the beginning. Additional forms of suffering under police custody include assaults,
In keeping within current legislation on the protection and respect of an individuals’ right of anonymity, (Clamp, Gough and Land 2004; Polit and Beck 2007), and to confidentiality, (Burns and G...
The Right to Remain Silent The right of silence long considered the most fundamental right of a
Leo, R and Ofshe R. The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions. 16 Studies in Law, Politics and Society 189,
The right to privacy is our right to keep a domain around us, which includes all those things that are apart of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose (Privacy Concerns 1). “Everyone has the right for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right…” (Privacy concerns 2). In 1998, the Human Rights Act, the act sets out the fundamental rights and freedoms that individuals have, came into force; it incorporated the European Convention on Human Rights, Article 8 which protects the right to private and family life. Was the first time there was a generalized right to privacy recognized by law in this country.