The rational behind the right to silence

dienbienphu

Can anyone explain to me the rational behind the right to silence?

aN.Droid

dienbienphu wrote: »

Can anyone explain to me the rational behind the right to silence?

Not everyone is versed in their rights and law and may say something to incriminate themselves without realising it. This is where a solicitor comes in, to talk on behalf of someone.

godtabh

Limericks wrote: »

Not everyone is versed in their rights and law and may say something to incriminate themselves without realising it. This is where a solicitor comes in, to talk on behalf of someone.

According to another thread here your solicitor does not attend the garda interview. Not much use to you then

aN.Droid

godtabh wrote: »

According to another thread here your solicitor does not attend the garda interview. Not much use to you then

Well if that was the case and I am not too sure if it is as I have never been in that situation then just stay silent for the interview and then have the solicitor sort it out afterwards?

Seriously bad system if that was the case though as you have no idea what you would be saying if you didn't understand the law.

28064212

Are you looking for something beyond the wiki page?

ResearchWill

godtabh wrote: »

According to another thread here your solicitor does not attend the garda interview. Not much use to you then

In this jurisdiction you have a right to consult a solicitor before any interview, you also have a right to stop the interview to again consult with a solicitor. The advice any good solitor should give in most cases is don't answer any question.

godtabh

ResearchWill wrote: »

The advice any good solitor should give in most cases is don't answer any question.

But does that not imply guilt?

ResearchWill

dienbienphu wrote: »

Can anyone explain to me the rational behind the right to silence?

A history of the right to silence, http://www.lawlink.nsw.gov.au/lrc.nsf/pages/DP41CHP2
While it is NZ the history is the same as here and England and Wales.

dienbienphu

I'm just wondering why a person who choses to remain silent can have inferances drawn from that right and have them held against him.

seamus

From looking around, there appears to be no clear history about why it appeared and no single rationale to allow it. On the one hand it doesn't seem logical that if someone is guilty they should be protected from incriminating themselves, but we know that language is not simple and someone who is not guilty could easily incriminate themselves when questioned by an experienced interrogator.

If the right to silence isn't a right, then by implication anyone who remains silent when questioned would be guilty of an offence. That in itself would be contrary to the idea of a fair system because it places all of the power in the hands of the prosecutors.

ResearchWill

dienbienphu wrote: »

I'm just wondering why a person who choses to remain silent can have inferances drawn from that right and have them held against him.

They can't except in very set circumstances under the Criminal Justice Act 2007. It's very rarely used and even rarer that it succeeds.

Manach

Offhand AFAIR, it is also protected under ECtHR rulings, so long as passes the proportionate test.

ResearchWill

seamus wrote: »

From looking around, there appears to be no clear history about why it appeared and no single rationale to allow it. On the one hand it doesn't seem logical that if someone is guilty they should be protected from incriminating themselves, but we know that language is not simple and someone who is not guilty could easily incriminate themselves when questioned by an experienced interrogator.

If the right to silence isn't a right, then by implication anyone who remains silent when questioned would be guilty of an offence. That in itself would be contrary to the idea of a fair system because it places all of the power in the hands of the prosecutors.

You may have missed this bit in the link I posted,

2.2 Under investigative procedures introduced in England in the sixteenth century, constables were required to bring a suspect before an examining justice as soon as possible after arrest for interrogation. A record of the interrogation, including the suspect’s refusal to answer questions, was transcribed and presented at trial.1

2.3 The judiciary grew to consider confessions inherently unreliable because examining justices were not an organised, effectively supervised body and were prone to mistreat suspects to obtain confessions. Judicial distrust of confession evidence was widespread in England by the nineteenth century.2 The right to silence developed as a judicial response to this distrust. The development of the right to silence at trial also contributed to the development of the right to silence when questioned by police.3

2.4 The Metropolitan Police Force was established in 1829, followed by the various provincial forces over the next two decades.4 The Summary Jurisdiction Act 18485 separated the investigative and judicial functions of the state. Examining justices were prohibited from questioning suspects. This role was given to the newly established police forces.

2.5 In the late nineteenth century, the attitudes of individual judges to the admissibility of police interrogation evidence varied, causing uncertainty.6 In 1912 the Home Secretary requested the judges of the King’s Bench to consider the issue. This led to the issue of the Judges’ Rules, which provided that whenever a police officer decided to charge a person with a crime, the police officer should first caution the person that he or she was entitled to remain silent.7 The Judges’ Rules operated as a code of practice rather than a rule of law.8 The caution was revised during the following decades. In 1978 the Judges’ Rules were formally adopted by the Home Office and a revised version was published and circulated to police.9

2.6 The trial judge was permitted to direct the jury that any person suspected of a criminal offence was entitled to remain silent when questioned by police and that the jury must not hold this against the defendant.10

There is a very clear reason for the right to silence which is closely linked to innocent till proven guilty.

http://www.innocenceproject.org/understand/False-Confessions.php

"In about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty."

Lets just read that in 1/4 of cases where DNA later proved a person was innocent they had made a confession. Scary thought that. I have seen innocent people give a confession, a lot of people only live in the now, so a belief that if I say I did it they will let me out, it will be all over. Also I have seen memos of interview that are nothing like the tape recording of the interview fact.

If a person is going to have a serious finding of guilt against them, have the whole resource of the state against them, face time in custody, then the system better get it right, the principles are in place not to protect the guilty but the innocent. We don't have to look back to far to see what a all powerful church and state can do to innocent people in the legal system, remember some of the industrial schools and magdalen laundry incarerations happened through the criminal legal system, (sure what do those girls need lawyers for they are guilty).

JackieBurke

A person is under no obligation to assist the state in building a case against him.

Often the only evidence against an accused person is his own confession.

It is the job of the Gardaí/DPP to gather evidence and make a case, the accused does not have to help them.

Procrastastudy

dienbienphu wrote: »

Can anyone explain to me the rational behind the right to silence?

If by this you mean the arseways interpretation that it's found under the freedom of expression rather than 38.1 I certainly can't.