Law in Policing: Legal Regulation and Police Practices

By David Dixon | Go to book overview

6 Silent Suspects and Police Questions

the so-called right of silence . . . is contrary to common sense. It runs counter to our realisation of how we ourselves would behave if we were faced with a criminal charge ( Williams 1987: 1107).

the very habit and faculty that makes apprehensible to us what is known and expected dulls our sensitivity to other forms, even the most obvious. We must rub our eyes and look again, clear our minds of what we are looking for to see what is there ( Malouf 1993: 130).

The Criminal Justice and Public Order Act 1994, section 34,1 permits courts and juries in England and Wales to 'draw such inferences . . . as appear proper' from a suspect's failure to mention to a police officer investigating an offence a fact relied upon in his or her defence. In other words, it severely restricts the right to silence during police questioning. The caution is transformed from warning to threat,2 and its implications go beyond the specific legal provisions on which it is based. With some significant judicial support, senior police officers had campaigned for such a change in the rules of evidence for almost thirty years.3 One Metropolitan Police Commissioner claimed that

____________________
1
Hereafter, 'the 1994 Act'.
2
'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': (Code C ( 1995), s. 10.4). The Criminal Justice and Public Order Act, ss. 36 and 37 similarly allow inferences to be drawn from (inter alia) failures to account for possession of an object or a substance, or for marks on clothing, or to account for being in a particular place. Silence at trial is similarly dealt with in s. 35. My focus here is restricted to pre-trial silence. For commentary, see Wasik and Taylor 1995: ch. 3; Zander 1995: 303-23.
3
Dixon 1991b. See Lord Lane's address to the 1987 Bar conference and his subsequent comments in Alladice ( 1988) 87 Cr. App. R. 380, at 385; Imbert 1988; Lawton 1987; 'The Police and Criminal Evidence Act: review of operations: summary of

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