In 1994 I completed a thesis for a Master of Jurisprudence degree. The title of the thesis was “The Silence of the Lambs: Innocence, silence, self-incrimination and proof burden in the Adversarial/Accusatorial Criminal Trial.” The thesis covered 300 pages including bibliography – a total of 134,821 words. It was a very detailed study.
Every so often the right to silence and aspects of self-incrimination arise in the course of discussions about our legal process. Recently there have been calls to consider getting rid of the right to silence either in the context of police investigations or as an overall concept. The Commissioner for Children, Andrew Becroft, wrote in the Herald about his proposals for modifications to the right to silence. His proposal is in line with powers that the Serious Fraud Office possesses.
This post addresses a wider issue.
What follows is a selection of parts of the thesis. It is important to understand what it is that we are talking about, and how the concepts of the privilege against incrimination and the right to silence fit within the accusatorial/adversarial criminal trial process. My final conclusion is that in fact the wrong question is being posed. Those who favour the abolition or abrogation of the right to silence really need to ask “what sort of criminal investigation and trial process do we want.”
From an historical point of view, the right to silence and the privilege against self-incrimination seem to have developed from the same essential concept but in fact reflect two distinct and separate principles. The phrase nemo tenetur seipsum proderewas used more and frequently throughout the seventeenth century. The clear concept was that an individual could not be required to be a witness against himself in the sense that he should not be asked questions which could provide evidence of or form the basis for a criminal charge. However, at common law it had been a principle for centuries that an accused person was unable to give evidence in court on oath and, indeed, this situation continued until 1898. That principle is summed up in the maxim nemo debit esse testis in propria causa .
It is my contention that in fact the two concepts are separate and distinct and cannot be used synonymously.
A difficulty seems to have arisen in treating silence in the face of questioning by officialdom (but not under oath or other form of compulsion) as an invocation of the privilege against self-incrimination. Without extending the adversarial process to the point of investigation such an application of the privilege is unsustainable.
Some writers have expressed difficulty with the application of the right during official questioning or at trial, and have totally ignored the situation pertaining to a witness other than the accused or the impact of the obtaining of incriminating evidence which may be derived in civil or other investigative or inquisitorial proceedings.
The nemo tenetur maxim protects a person who may have committed or be suspected of a crime or offence in two respects. First, that person need not give any information to investigative authorities which may incriminate him – that is which may give the authorities sufficient evidence from his own mouth alone to accuse him or to bring a charge. Self-incrimination was seen as objectionable because it essentially was a form of self-accusation, rather than accusation from another source.
Secondly the significance of the concept of “privilege” is highlighted not by its existence but by its abrogation. A line of cases in England illustrates where in certain situations provided by statute, evidence derived in one forum which may be incriminatory and obtained by a form of compulsion, may potentially be used in criminal proceedings.
The right that reposes in an accused person at trial arises, from the nemo debit maxim. The right to silence at trial – that is to sit back and put the prosecution to the proof of its case – is grounded both upon the nemo debit maxim and also upon the burden of proof being upon the accusing authorities to prove the charge which has been laid.
Historically there may have been collateral issues involving the likelihood of self-incrimination arising from cross-examination, but it is my clear view that they were collateral only, having regard to the much older concept of disqualification for interest, and the old concept that an accused could not be sworn to give evidence at his trial. The position now is that an accused who elects to give evidence accepts that risk, for he may be cross-examined. Yet he still retains the right to remain silent in the face of his accusers.
In my view, the distinction between the rights that I have described above and what is called the privilege against self-incrimination is highlighted by the example of the witness, (who can be compelled to give evidence as opposed to the accused who cannot), giving evidence in the course of a trial and may be asked a question the answer to which may be self-incriminatory in that it provides an acknowledgement of participation in another unrelated offence. In such a situation that witness is entitled to be warned that he need not answer on the grounds that he may incriminate himself. Thus, in adopting such a course of action, the witness is availing himself of a privilege that arises in the course of his giving evidence in respect of which he is compellable.
It is clear that the definitional waters have become muddied and the terms have become interchangeable.
One problem seems to be in the interchangeable use of the word “right” on the one hand and “privilege” on the other. Although what is generally known as the “right to silence” has one of its foundations in the principle that a person should not provide the foundation for an accusation against him or herself, the specific right to silence at trial is based on a more fundamental principle associated with the burden of proof coupled with the historical premise of nemo debit.
The right to silence in the face of investigative questioning is partially grounded on the concept of non-self accusation but it is also based on the historical loathing of the English common law for torture and with judicial disapproval of compulsion, coercion and lack of voluntariness in the obtaining of an incriminating statement.
The true “privilege against self-incrimination” attaches to a person who is compelled to give evidence and may suffer a penalty imposed by a legal authorityfor failure to answer. That privilege may attach to a person who may not have been charged with an offence or who may be subject to a charge.
In granting to an accused a right to give evidence at trial, an issue arose regarding cross-examination, which would directly impinge upon the privilege against self-incrimination. The right to give evidence carried with it a concomitant obligation to subject oneself to cross-examination without being able to raise the privilege against self-incrimination.
I suggest that the categories may be reduced in the following way:
1. The Right to Silence being:
(a) The right to maintain silence at trial which is a specific right attaching to an accused. It is derived from the nemo debit principle, the concept of disqualification for interest, and the prosecutorial burden of proof. It contains implications for the privilege against self-incrimination and for the burden of proof if it is abrogated.
(b) The right to maintain silence in the face of investigative inquiry. This is a general right available to all and is based on privacy, the burden of proof of an offence resting upon the accuser and the sanctity of the individual from coercion, compulsion or unfairness on the part of investigative authorities. If there is to be an inculpatory statement made it must be as the result of the free exercise of choice. There is no historical basis for claiming the nemo tenetur principle having regard to the use of the enquiry conducted by the Justices of the Peace following the passage of the Marian Statutes, and the fact that the privilege against self-incrimination was not invoked.
2. The privilege against self-incrimination which is a general privilege available to any witness who is compelledto give evidence on oath and who, if he or she does not refuse to answer, may give evidence which may incriminate that witness and lead to a penalty, and where failure to answer may attract a penalty which may be imposed by law or by an authority having the power to impose a penalty.
To summarise my contention on the matter, there is a right reposing in all citizens to remain silent in the face of investigative interrogation and to refrain from giving verbal information which may result in self-incrimination.
There is a right reposing in all citizens standing trial before a jury or a judge alone to remain silent throughout the trial and refrain from giving evidence in answer to the evidence brought by the prosecution.
There is a privilege reposing in witnesses (other than an accused) who are called at a trial or some other hearing or inquiry to give evidence to refuse to answer questions which may involve self-incrimination.
Our criminal system is that of an accusatorial/adversarial model. Critics of the privilege have professed an allegiance to this model of criminal proceeding, together with its presumptions and allocation of proof burdens and standards. It is therefore a matter of concern to read the critics condemn the privilege and the right to silence as the shelter of the guilty. In the rigorous legal sense that cannot be the case. A person is not guilty until he or she has been found guilty or has pleaded guilty. If a person has remained silent and is guilty, by a strict application of the presumption of innocence, that person must have been found guilty. That finding must have taken place absent any evidence from the accused.
The question falls to be answered – how then has the system suffered as a result of the right to silence? If, however, a slightly less rigorous approach is being adopted by the critics, and their argument is that people are guilty who have not been convicted at trial, and that this has been as a result of the exercise of the right to silence, the question falls to be answered – what value do the critics then place upon the presumption of innocence?
The point that this makes is that one cannot view an issue such as the right to silence in a vacuum from other parts of the criminal legal process. Although those who classify the right to silence and the privilege against self-incrimination within the category of evidence do so because it has certain evidential ramifications, such a classification fails to view the right to silence and the privilege against self-incrimination as a part of the matrix of the entire criminal process. It is inextricably bound up with fundamental precepts of the criminal process – the presumption of innocence and the burden of proof – along with other matters of an evidential nature as well.
Although the right to silence is a convenient target, and may, in the minds of the critics, be easily separated from the criminal process without doing violence to the integrity of the process as a whole, it is my conclusion that such a course of action is not possible. Although the criminal process has developed to its present point in disparate ways, and in response to different stimuli, it is, nevertheless a settled matrix of fundamental principles. To disturb any one of those will render the shape of the matrix to quite a different one from that which we recognise today.
If the critics of the right to silence were to carry the matter to its logical conclusion, the question that they should ask is “what fundamental model of the criminal process do we want” and address the issue of the burden and standard of proof and the inquisitorial system as opposed to the adversarial\accusatorial model.
The privilege is built into the adversarial\accusatorial model. If the right to silence were lost and the accused were required to answer or risk adverse inferences the trial process would shift to an inquisitorial system with its complex of shifting proof burdens.
There may indeed be an argument for an inquisitorial system but if a simple solution of attributing evidential weight to silence or allowing adverse inference to be drawn from silence were adopted, we would be left with unfavourable aspects of the inquisitorial system without any of the protections for an accused that such a system may offer. As I have suggested, the matrix would be destroyed. The whole focus of the trial would shift to the accused and an assessment of his or her case rather than the focus remaining upon the prosecution case. Quite clearly, the burden of proof would be affected. The accused’s account, or his failure to give one becomes the focus and centre of the trial, rather than the strength or weakness of the prosecution case.
 No one is bound to become his own accuser.
 Especially in circumstances where there was little or no other evidence and in circumstances where prosecuting authorities were anxious that evidence of a confessional nature be provided and available.
 Although in criminal trials an accused was expected to speak and engage in dialogue and verbal contest with prosecution witnesses in what Professor Langbein describes as the “accused speaks” trial.
 No man should be a witness in his own cause.
 Although the privilege against self-incrimination is referred to by Lord Mustill in Smith v Director of Serious Fraud Office  3 All ER 456, 463 as aspects of a disparate group of immunities gathered together under the heading of “ the right to silence”.
 As was the case in Miranda v Arizona 384 US 436 (1966)
 “Incriminate” is defined in the Shorter Oxford English Dictionary as “To charge with a crime; to involve in an accusation or charge”.
 Without any form of protection for the witness in the way in which the evidence may be used directly or the way in which the evidence given may lead an investigative body to uncover evidence indirectly.
 The distinction of witness privilege as opposed to the right to silence that reposes in an accused person at trial is clarified and supported by Mr. Justice deCordova Rowe in How Valid is the Right to Silence at Criminal Law (1990) Commonwealth Law Conference Papers 267. However, Mr. Justice Vincent describes the title to his paper as The Right to Silence Revisited Again (1990) Commonwealth Law Conference Papers 263 when in fact it deals primarily with investigative interrogation which involves issues of self incrimination based on the concept of prodere.
The true nature of the privilege is further exemplified in the English cases to which I have referred, especially R v Kansal  3 All ER 844 and Bishopsgate Management Ltd v Maxwell  2 All ER 856.
 I shall not inject a further element of confusion into what is largely a conceptual discussion by referring the Fifth Amendment to the Constitution of the United States which has elevated the privilege against self-incrimination to a constitutional right.
 Such as a penalty for contempt, which could include loss of liberty.
 By subpoena or otherwise.
 The privilege is available to an accused who faces charge A, but can claim the privilege when cross-examined about an unrelated allegation B at his trial on charge A.
 All subject, of course, to statutory abrogation.