ANGLO-AUSTRALIAN CRIMINAL
PROCEDURE THE RIGHT OF SILENCE
Wayne T. Westling*
The right of silence has developed along lines in English jurisdictions very different from those in the United States. The basic
premise underlying the right-that an accused in a criminal proceeding ought not be forced to condemn himself from his own
mouth-is the same in both jurisdictions. But there are many differences when it comes to applying that premise in the practical situation of a criminal prosecution. The extent of these differences was
demonstrated when the Criminal Law Revision Committee (the
Committee) in the United Kingdom handed down its Eleventh Report in June 1972. 1 This Report suggested a number of changes in
the laws of evidence relating to criminal proceedings. Among the
areas in which changes were considered were privilege, hearsayevidence, testimony of children, and eye-witness identification. Although these matters were of great concern, they were completely
overshadowed by the suggestions the Committee made for changes
in the right of silence.
The object of this article is to examine the English position on
the right of silence immediately before the Eleventh Report, look at
the recommendations made by the Committee in that Report, and
then reveal the fate of those recommendations. In so doing, it is
believed that a general overview of the many departures from the
United States experience will be highlighted.
Part II of this article is devoted to a detailed examination of the
Committee's recommendations. It is helpful, however, to briefly
summarize those recommendations at this point. In very simple
terms, the recommendations sought to: (1) abolish the caution given
by the police to an accused person that he may remain silent and
that anything he says may be taken down in writing and given in
evidence; (2) abolish the privilege of the accused to make an unsworn statement from the dock 2 during his trial; (3) allow the judge
* B.A., Occidental College; J.D., New York University; Visiting Assistant Professor of
Law, University of Oregon.
1. Eleventh Report of the Criminal Law Revision Committee (Cmnd 4991) H.M.S.O.
Lond., 1972 [hereinafter cited as Eleventh Report).
2. In Anglo-Australian courts the accused sits in a separate enclosure, usually raised,
in the body of the courtroom. This enclosure is called the dock. BLACK'S LAW DICTIONARY 567
1
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to call the accused to give evidence'at his trial and allow comment
if the accused refuses to give such evidence when so invited by the
judge; (4) allow the jury to draw an adverse inference from the
accused's failure to testify; and (5) allow the jury to draw an adverse
inference from the accused's failure to make a full explanation to
the police during pre-trial interrogation.
At a glance these suggestions would pose very serious questions
for Americans. A number of these questions, of course, would be
based on constitutional grounds, primarily the Bill of Rights. As we
shall see in Part I of this article in which the current position in
British jurisdictions with respect to the right of silence is examined,
no such constitutional obstacle pertains there. Nevertheless, when
the Committee handed down its Eleventh Report suggesting these
changes in the right of silence, the entire legal community and a
great portion of the non-legal community became involved in an
intense debate. This controversy reached' the antipodes in rapid
order, and in June 1973, the author was a participant in a seminar
conducted by the Institute of Criminology at the University of Sydney Law School debating these very issues. 3 It was not a mere academic debate. The New South Wales Criminal Law Revision Committee was contemplating these very changes in criminal procedure
and evidence in that state. The fate of the proposals in New South
Wales and in England was decided in 1974 and is discussed in Part
III of this article.
I.
THE RIGHT OF SILENCE IN THE BRITISH COMMONWEALTH
A.
At the Trial
Until 1898 the accused in a criminal case was not considered
competent to give evidence on oath at his own trial. The apparent
principle underlying this rule was that the accused could never be
expected to tell the truth about his own involvement and therefore
it would be condoning perjury to put him on oath and have him give
(4th ed. 1968). The unsworn statement is described as being "from the dock" to distinguish
it further from the sworn testimony of a witness which is always given from the witness box,
a separate raised arena, partly enclosed, which usually abuts on the judges' bench. For a
critical description, see G. WILLIAMS, THE PROOF OF GUILT 83 (3d ed. 1963) [hereinafter cited
as WILUAMS].
3. A report of the proceedings of the seminar is contained in The Right of Silence,
PROCEEDINGS OF THE INSTITUTE OF CRIMINOLOGY, UNIV. OF SYDNEY, No. 17 (1973) [hereinafter
cited as PROCEEDINGS].
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formal evidence. It was considered unfair, however, that he should
not be able to speak at all. Therefore, an unsworn statement from
the dock was permitted by some judges to give him an opportunity
to tell his story.4 The Criminal Evidence Act of 1898 gave the accused the power to testify under oath in his own behalf. 5 But the Act
did not abolish the unsworn statement; instead, it specifically preserved the right of the accused to make such a statement. 6
The result of this anomaly is that from 1898 to the present day
the accused has been able to choose to make an unsworn statement
or give his evidence on oath. Of course, he may choose to do neither
and stand mute. The obvious advantage for a defendant making an
unsworn statement is that he will be able to explain his conduct and
thoughts without being cross-examined on this explanation. This is
particularly important if the accused has a prior criminal record.
This situation exists today in all British Commonwealth countries
with the exception of New Zealand which abolished the statement
from the dock about 10 years ago. 7
This attitude toward the testimony of a defendant is quite contrary to that of American jurisdictions in which the defendant is
considered to be just like any other witness for the purposes of giving
testimony. If the purpose of a trial is a search for the truth, and
if that search is carried out through the medium of examination
and cross-examination, then the absence of this testing crossexamination of a most crucial witness seems anathema to the purpose.
A second point of difference between British and American
jurisdictions lies in the comment permissible by a judge upon the
accused's failure to testify. In England and most Australian states,
judicial comment on the accused's silence is proper.
[T]he accepted form of comment is to inform the jury that, of
course, he is not bound to give evidence, that he can sit back and
see if the prosecution have proved their case, and that while the
jury have been deprived of the opportunity of hearing his story
tested in cross-examination, the one thing they must not do is to
4. WILLIAMS, supra note 2, at 45-46; R. CROSS, EVIDENCE 159 (3rd ed. 1967); Z. COWEN
& P. CARTER, ESSAYS ON THE LAw OF EVIDENCE 206-07 (1956); Eleventh Report, supra note 1,
~ 21(iii), at 11.
5. The Criminal Evidence Act of 1898, 61 & 62 Viet., c. 36, § 1.
6. Id. at § l(h). See WILUAMS, supra note 3, at 71.
7. Crimes Act 1961, § 366A, inserted by the Crimes Amendment Act 1966 § 5 (New
Zealand). See D. MATHIESON, CROSS ON EVIDENCE 174 (2nd New Zealand ed. 1971).
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assume that he is guilty because he has not gone into the witness
box. s
Such comment is apt to be made in a case that strongly calls for
testimony by the accused. It is unlikely to be made if the prosecution's case is very weak or has been damaged by cross-examination
or if an adequate defense has been put by witnesses other than the
defendant. 9 As Lord Parker, C.J., stressed, a very strong case for
comment may exist when the burden of proof is on the defense for
certain issues.
[N]obody can force [the accused] to go into the witness box, but
the burden is upon him, and if he does not, he runs the risk of not
being able to prove his case. to
Two Australian states, New South Wales ll and Victoria,12 forbid judicial comment on the defendant's failure to give evidence. If
judicial comment is forbidden, Professor J.D. Heydon suggests that
the danger of the jury's drawing improper adverse inferences may
in fact increase simply because they have not been told what inferences the general law permits and forbidsY An interesting resolution of this dilemna, and one practiced in many American states, is
that of giving the accused the choice of whether or not he wants the
judge to instruct the jury concerning his silence. Typical of such
instructions are two examples found in the Standard California Jury
Instructions and often used together:
It is a constitutional right of a defendant in a criminal trial
that he may not be compelled to testify. Thus the decision as to
whether he should testify is left to the defendant, acting with the
advice and assistance of his attorney. You must not draw any
inference of guilt from the fact that he does not testify, nor should
this fact be discussed by you or enter into your deliberations in any
way.14
In deciding whether or not to testify, the defendant may
R. v. Bathurst, [1968] 2 Q.B. 99, 107-08.
See generally, Heydon, Silence as Evidence, 1 MONASH U. L. REV. 53,63-64 (1974)
[hereinafter cited as Heydon], and cases cited therein.
10. R. v. Bathurst, [1968] 2 Q.B. 99, 108.
11. Crimes Act 1900 § 407(2) (New South Wales, Australia).
12. Crimes Act 1958 § 399(b) (Victoria, Australia).
13. Heydon, supra note 9, 65-66.
14. California Jury Instructions-Criminal No. 2.60, at 54 (3d rev'd ed. P. Richards
1970).
8.
9.
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choose to rely on the state of the evidence and upon the failure, if
any, of the People to prove every essential element of the charge
against him, and no lack of testimony on defendant's part will
supply a failure of proof by the People so as to support by itself a
finding against him on any such essential element. IS
By following this instruction, the jury would be forbidden to draw
any inferences from the accused's failure to give testimony. The
judge, however, cannot give this instruction over the defendant's
objection. Thus, if a defendant believes a jury cannot follow the
instruction or simply does not want to bring his lack of testimony
to its attention, then the judge may not give it. \6
The prosecution likewise is forbidden to comment on the silence
of the accused. In this regard, the English and Australian rule follows that of Griffin u. CaliforniaY A more difficult problem is
whether counsel for a co-defendant may comment on another defendant's failure to give evidence. As a practical consideration such
comment would be very valuable to the defendant who did take the
witness stand and give his evidence on oath. Because juries are
commonly believed to compare the culpability of co-defendants,
an excellent measure of that culpability might be the fact that one
was willing to testify under oath and be cross-examined while the
other chose to remain silent or to give his statement from the dock
without taking an oath. The English Criminal Evidence Act says
nothing about comment by counsel for co-accused, and a recent
decision held that counsel for a co-defendant has the right to comment and the judge has no discretion to prevent this comment. IS In
New South Wales,'in another exception to the rule of no comment,
the judge is invited to comment on the comment made by counsel
for the co-accused. \9
B.
Pre- Trial Period
Unlike the rules laid down for American courts in Mapp u.
Ohio 20 and Escobedo u. Illinois ,2\ British courts have discretion in
15.
16.
17.
18.
19.
20.
21.
Id. No. 261, at 56.
People v. Molano, 253 Cal. App. 2d 841, 61 Cal. Rptr. 821 (1967).
Griffin v. California, 380 U.S. 609 (1965).
R. v. Wickham and Ors., [1971) 55 Cr. App. R. 199.
Crimes Act 1900 § 407(2) (New South Wales, Australia).
Mapp v. Ohio, 367 U.S. 643 (1961).
Escobedo v. lJIinois, 378 U.S. 478 (1964).
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deciding whether or not evidence, including confessions, should be
excluded at the trial. So far as physical evidence is concerned, the
rule was laid down by the Judicial Committee of the Privy Council
in Kuruma u. R. 22 in the following terms:
... [t]he test to be applied in considering whether evidence is
admissible is whether it is relevant to the matters in issue. If it is,
it is admissible, and the court is not concerned with how the evidence was obtained . . . . No doubt in a criminal case the judge
always has a discretion to disallow evidence if the strict rules of
admissibility would operate unfairly against an accused. . .. In
their Lordships' opinion, when it is a question of the admission of
evidence strictly it is not whether the method by which it was
obtained is tortious but excusable but whether what has been obtained is relevant to the issue being tried.
Confessional statements are governed by the Judges' Rules.
These rules were originally promulgated in 1912 and have been updated since then. The basic premise of these rules is that any statement is admissible so long as it is voluntary. Thus, the Judges'
Rules require that when a person is being interrogated by the police,
a caution be given. 23 The caution is currently: "You are not obliged
to say anything unless you wish to do so but what you say may be
put into writing and given in evidence."24 There is no requirement
in the Judges' Rules that an accused be informed that he has a right
to counsel, and there is no requirement whatsoever in English law
that an indigent person be provided with counsel at the interrogation stage if he cannot afford counsel of his own choosing. In practice, if an accused person requests counsel, questioning ceases until
counsel has been provided, but no effort is made to inform a suspect
who does not request counsel of his right to do SO.25 Any statement
made under these circumstances is admissible unless the judge exercises his discretion to edit or exclude it. The basic criterion for the
exercise of this discretion is the natural law concept of unfairness;
22. Kuruma v. R., [1955) A.C. 197,203-04 (P.C.). But see Wendo v. R., [1964) AUSTL.
ARGUS L. R. 292, 293 (Dixon, C.J.).
23. The latest version was promulgated in 1964: see 1964 CRIM. L. REV. 166-70 (1964).
Cf. An Examination of the Judges' Rules in Australia, 46 AUSTL. L.J. 489 (1972).
24. HMSO, Home Office Circular No. 31/1964, App. A, reprinted in 1964 CRIM. L. REV.
(Eng.) 165, 166 (1964). The earlier version is reproduced in P. DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND 137-41 (1958).
25. Address by R. Lucas, Superintendent of Police of New South Wales Police, in
Sydney, June 1973. See text accompanying note 2 supra.
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in reality it is rarely exercised.
A slight variation on the matter of pre-trial interrogation occurs
when an accused is questioned by the police and fails to offer some
explanation that he subsequently gives at the trial. Common sense
indicates that the fact that the police were deprived of the opportunity to investigate the explanation may affect the weight to be
given it. This common sense approach has been approved in British
jurisdictions and the trial judge may instruct the jury along these
lines. 26 Recent cases, however, have rather narrowly proscribed this
area of judicial instruction. It is a misdirection for the judge to tell
the jury that there is an inference against the truth of his testimony
in court because if it were true it is surely something the accused
would have told the police when he was first questioned. 27
Much of this dilemma is created, of course, by the fact that the
accused has been told that he does not have to speak and then the
judge suggesting that his failure to speak in some way indicates
either consciousness of guilt or a deliberate falsehood told from the
witness stand. The recent decisions, however, are not limited to
official caution situations. The Committee recognized this in their
summary of the current law when they said: '
[W]e have no doubt that it is now established that the rule that
an invitation to draw an inference of guilt from the accused's silence is a misdirection exists independently of any caution. 26
The foregoing rules apply equally when the accused does give an
interview to the police but the particular evidence produced at trial
is something which was not disclosed during this interview or is
completely contrary to that disclosed in the interview.
II.
THE PROPOSED CHANGES
A.
At the Trial
The Eleventh Report recommended two substantial changes in
procedures at the trial itself. The first of these was that the statement from the dock be abolished. This alteration is contained in
R. v. Littleboy, (1934) 2 KB. 408; Eleventh Report, supra note 1, ~ 29, at 16.
R. v. Sullivan, [1967] 51 Cr. App. R. 102; R. v. Hoare, (1966) 50 Cr. App. R. 166.
See generally T. BUTLER & S. MITCHELL, ARCHIBOW: PLEADING, EVIDENCE & PRACTICE IN CRIMINAL CASES § 600 (38th ed., Supp. 1973).
28. Eleventh Report, supra note 1, ~ 29, at 17.
26.
27.
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section 4 of the draft bill which the Committee recommended. That
section in part provides:
(1) In any proceedings the accused shall be competent to
give evidence on behalf of himself or any person jointly charged
with him, but shall not be compellable to do so.
(2) In any proceedings the accused shall not be entitled to
make a statement without being sworn, and accordingly, if he gives
evidence, he shall do so on oath and be liable to cross-examination;
but this subsection shall not affect the right of the accused, if not
represented by counselor a solicitor, to address the court or jury
or otherwise than on oath on any matter on which, if he were so
represented, counselor a solicitor could address the court or jury
on his behalf. 29
In commenting on this proposal, the Committee demonstrated its
strong feelings about the abolition of the unsworn statement:
Weare strongly of opinion that the right to make an unsworn
statement about the facts instead of giving evidence on oath or
affirmation should be abolished. Whatever justification there may
have been for preserving the right in 1898, we think that nowadays
the accused, if he gives evidence, should do so in the same way as
other witnesses and be subject to cross-examination . . . . The
persons and bodies whom we consulted were almost unanimous in
agreeing with our suggestion that the unsworn statement should be
abolished, though a few expressed indifference because they
thought the matter unimportant. 3o
In section 4 (4) of the draft bill presented by the Committee,3\ the
suggestion was made that when the defendant is going to be a witness, he should be the first witness called by the defense. This would
be a minor change from the current practice that requires an exceptional case for the defendant not to be the first witness. The recommendations of the Committee would give the judge discretion to
vary that rule when he felt it appropriate. The fundamental idea is
still that in fairness and justice the accused normally ought to give
his testimony before hearing other witnesses for the defense.
The second proposed change in trial procedure appears in section 5 of the draft bill. This section which would allow a judge to
29.
30.
31.
[d. at 176.
[d. ~ 104, at 65-66.
[d. at 176.
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call on a defendant to testify in certain situations states:
(1) At the trial of any person for an offence the following provisions of this section shall apply unless he pleads
guilty, except that subsection (2) shall not apply if (a) the court holds that there is no case to answer;
or
(b) before any evidence is called for the defence,
the accused or counselor a solicitor representing him
informs the court that the accused will give evidence; or
(c) it appears to the court that the physical or
mental condition of the accused makes it undesirable
for him to be called upon to give evidence.
(2) Before any evidence is called for the defence, the
court shall tell the accused that he will be called upon by the
court to give evidence in his own defence and shall tell him
in ordinary language what the effect of this section will be if,
when so called upon, he refuses to be sworn; and thereupon
or, if the court in the exercise of its discretion under section
4 (4) of this Act allows the defence to call other evidence first,
after that evidence has been given, the court shall call upon
the accused to give evidence.
(3) If the accused(a) after being called upon by the court to give
evidence in pursuance of this section, or after he or
counselor a solicitor representing him has informed the
court that he will give evidence, refuses to be sworn; or
(b) having been sworn, without good cause refuses
to answer any question,
the court or jury, in determining whether the accused is guilty
of the offence charged, may draw such inferences from the
refusal as appear proper; and the refusal may, on the basis
of such inferences, be treated as, or as capable of amounting
to, corroboration of any evidence given against the accused.
(4) Nothing in this section shall be taken to render the
accused compellable to give evidence on his own behalf, and
he shall accordingly not be guilty of contempt of court by
reason of a refusal to be sworn in the circumstances described
in subsection (3) (a) above.
(5) For the purposes of this section a person who, having been sworn, refuses to answer any question shall be taken
to do so without good cause unless (a) he is entitled to refuse to answer the question
by virtue of section 6 (1) of this Act or any other enactment, whenever passed, or on the ground of privilege; or
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(b) the court in the exercise of its general discretion excuses him from answering it. 32
In proposing this section, the Committee stated its argument in the
strongest of terms:
In our opinion the present law and practice are much too favourable to the defence. We are convinced that, when a prima facie case
has been made against the accused, it should be regarded as incumbent on him to give evidence in all ordinary cases. We have
no doubt that the prosecution should be entitled, like the judge,
to comment on his failure to do so. The present prohibition of
comment seems to us wrong in principle and entirely illogica1. 33
Furthermore, the Committee left no doubt as to its aim in proposing
this change in the law:
The changes which we propose . . . will, we hope, operate as a
strong inducement to accused persons to give evidence. But we
wish to go further still for this purpose. We propose that, once the
court has decided that there is a case for the defence to answer
(which the court is under a duty to consider even if the defence do
not submit that there is no case), the court should tell the accused
that he will be called on at the appropriate time to give evidence
in his own defence and should tell him what the effect will be if
he refuses to do so; and we propose that, when this time comes,
the court should formally call on the accused to give evidence. The
intimation by the court will leave the accused under no mistake
as to what will be his position. This is particularly important if the
accused is unrepresented. We think that the formal calling on the
accused to give evidence, followed by his refusal, would have value
in demonstrating to the jury or magistrates that the accused had
the right, and obligation, to give evidence but declined to do SO.34
The Committee also would restore the right of the prosecution to
comment on the failure of the accused to give evidence under the
circumstances set out in section 5 of the draft bill. 35 The 1898 Evidence Act would be almost entirely repealed by the draft bill, including section l(b) which forbids comment by the prosecution. 36
32.
33.
34.
[d. at 176-77.
[d. ~ 110, at 68-69.
[d. ~ 112, at 69-70.
35.
See Eleventh Report, supra note 1, sched. 2, at 209.
36.
[d. ~ 113, at 70.
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B.
11
Pre- Trial Investigation
In the very first section of the draft bill, the Committee proposed (1) that the requirement by law to caution a suspect before
questioning him be abolished; (2) that if the defendant failed to tell
the police something which he later relied on at trial, an inference
could be drawn against the defendant from that omission; and (3)
that the judge or the prosecutor could comment on such a discrepancy in the defendant's statements. The precise text of section 1 of
the draft bill is as follows:
(1) Where in any proceedings against a person for an
offence evidence is given that the accused (a) at any time before he was charged with the
offence, on being questioned by a police officer trying to
discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially
informed that he might be prosecuted for it, failed to
mention any such fact,
being a fact which in the circumstances existing at the time
he could reasonably have been expected to mention when so
questioned, charged or informed, as the case may be, the
court, in determining whether to commit the accused for trial
or whether there is a case to answer, and the court or jury, in
determining whether the accused is guilty of the offence
charged, may draw such inferences from the failure as appear
proper; and the failure may, on the basis of such inferences,
be treated as, or as capable of amounting to, corroboration of
any evidence given against the accused in relation to which
the failure is material.
(2) Subsection (1) above shall apply in relation to questioning by persons (other than police officers) charged with
the duty of investigating offences or charging offenders as it
applies in relation to questioning by police officers; and in
that subsection "officially informed" means informed by a
police officer or any such person.
(3) Nothing in subsection (1) or (2) above shall in any
proceedings (a) prejudice the admissibility in evidence of the
silence or other reaction of the accused in the face of
anything said in his presence relating to the conduct in
respect of which he is charged, in so far as evidence
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thereof would be admissible apart from those subsections; or
(b) be taken to preclude the drawing of any inference from any such silence or other reaction of the accused which could be drawn apart from those subsections.
(4) Subsections (1) and (2) above shall not apply as
regards a failure to mention a fact if the failure occurred
before the commencement of this Act.
(5) It is hereby declared that a police officer or other
person who suspects a person of having committed an offence
is not required by law to caution him before questioning him
in relation to the offence. 37
The choice of words used by the Committee in section 1 was a
deliberate one. The words "any fact relied on in his defence in the
proceedings" were deliberately chosen as being just precise enough
without requiring great elaboration. 3s
The words are intended to apply to any definite statement made
by a witness at the hearing and supporting the case for the defence.
The facts might include an alibi, belief that stolen goods were not
stolen (on a charge of handling stolen goods), the defence to a
charge of robbery that the accused was resisting an indecent assault by the prosecutor, consent (on a charge of rape) and (on a
charge of indecency with a child) innocent association (for example, that the accused took the child into the bushes to show him a
bird's nest).39
Likewise the words "such inferences . . . as appear proper" were
explained by the Committee as depending on the circumstances.~o
In a straightforward case of interrogation by the police where the
accused has no reason for withholding his story (apart from the fact
that he has not had time to invent it or that he hopes to spring it
on the court at his trial) an adverse inference will clearly be proper
and, we think, should be readily drawn. Obviously there may be
reasons for silence consistent with innocence. For example, the
accused may be shocked by the accusation and unable at first to
remember some fact which would clear him. Again, to mention an
exculpatory fact might reveal something embarrassing to the ac37.
38.
39.
40.
[d. at 172-73 (emphasis added).
[d. ~ 33, at 19.
[d.
[d. ~ 35, at 20-21.
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cused, such as that he was in the company of a prostitute. Or he
may wish to protect a member of his family. It will be for the court
or (with the help of the judge's direction) for the jury to decide
whether in all the circumstances they are justified in drawing an
adverse inference. 41
Before this section was to become effective, the fact at issue had
to be one which the accused had "relied on in his defence." These
words also were deliberately chosen by the Committee which stated
in regard to this requirement:
Usually, we think, it will be sufficiently clear from the crossexamination of the witnesses for the prosecution whether a fact is
being relied on in this way, and then the prosecution will be able
to adduce evidence that the accused did not mention it when interrogated. It is true that sometimes the defence will be able to avoid
showing this before the accused gives evidence at the trial . . . .
The prosecution will then be able to ask the accused in crossexamination why he failed to mention this fact when interrogated;
and if the court in its discretion . . . gives leave, the prosecution
will be able to call evidence to prove the failure. 42
With respect to abolition in subsection (5) of the caution given
by the police during questioning, the Committee felt that there were
serious objections to the cautions as they are now administered.
(i) It is of no help to an innocent person to caution him to the
effect that he is not obliged to make a statement. Indeed, it might
deter him from saying something which might serve to exculpate
him. On the other hand the caution often assists the guilty by
providing an excuse for keeping back a false story until it becomes
difficult to expose its falsity. In fact the caution seems to stem from
the ancient fallacy. . . that "fairness" in criminal trials requires
that a guilty person should not be allowed to convict himself too
easily . . . .
(ii) It is illogical that, when the police have a duty to question
persons for the purpose of discovering whether and by whom an
offence has been committed, they should be required to tell a person being questioned that he need not answer. 43
The Committee felt that because the Judges' Rules had become so
41.
42.
43.
[d. at 21.
[d. ~ 36, at 21.
[d. ~ 43, at 24-25.
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much a part of the procedure in police interrogations, it was desirable to include this declaration in subsection (5) that the rules were
no longer required even though such a declaration may have been
unnecessary as a legal or administrative reality.44
III.
THE GREAT DEBATE
A.
In General
When the Committee handed down its report, it was immediately and fully reported in the English press. Just as immediately
and just as fully the report was examined, dissected, and commented on by a wide variety of people. Journalists, judges, parliamentarians, and lawyers all had a crack at the report and various
parts of it. Although much of the comment was favorable, on the
issue of modification of the right of silence, the overwhelming unfavorable comment almost drowned out any favorable response. The
London newspapers on June 28, 1972, carried very lengthy discussions of both the report itself and the criticisms of the report. 45 The
next few weeks saw a number of follow-up articles as well as the
inevitable deluge of letters to the editor in the same newspapers. 46
Comment was not restricted to the newspapers, however. The General Council of the Bar of England and Wales prepared a 73-page
memorandum on the Eleventh Report. Of that 73 pages, 18 were
taken up in scathing criticism of section 1 in the draft bill submitted by the Committee. Justice, the British Section of the International Commission of Jurists, prepared a 12-page memorandum of
the Eleventh Report. This memorandum had some rather uncomplimentary things to say about the changes to the right of silence.
It was subsequently adopted by the section as reported in the Sixeenth Annual Report in June of 1973. Legal academics were not to
be left out either, and comment in law journals, both in England
and overseas, was quickly forthcoming. 47
The general tenor of the criticism was that the Committee was
44. [d. at 25.
45. E.g., The Times (London), June 28,1972, at 1, 4,15 (editorial).
46. E.g., The Times (London), July 1, 1972, at 2 (article); The Times (London), June
30, 1972, at 17 (five letters).
47. E.g., Carlisle, The Criminal Law Revision Committee's Report on Evidence, 12 J.
Soc. PUB. T. L. 224 (1973); Cross, The Evidence Report: Sense or Nonsense, 1973 CRIM. L.
REV. (Eng.) 329 (1973); Griew, Proposed Reforms of the Law of Evidence in Criminal Cases
in England and Wales, 10 V.W. AusTL. L. REV. 243 (1972); Zuckerman, Criminal Law Revision Committee lith Report, Right of Silence, 36 MODERN L. REV. 509 (1973).
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proceeding on the unjustified and unsubstantiated premise that too
many people who were in fact guilty of criminal charges were being
found not guilty in the courts of law. The Committee left itself open
to this criticism by some of the comments it made in the report
itself. For instance, in paragraph 21 the Committee stated:
Criminals are far more sophisticated than they used to be . .
[T]here is now a large and increasing class of sophisticated professional criminals who are not only highly skilled in organising
their crimes and the steps they take to avoid detection but are well
aware of their legal rights and use every possible means to avoid
conviction if caught. These include refusal to answer questions by
the police and the elaborate manufacture of false evidence. 48
After listing a number of historical factors which are no longer relevant in criminal trials, the Committee went on to say:
. . . strict and formal rules of evidence, however illogically they
may have worked in some cases, may have been necessary in order
to give accused persons at least some protection, however inadequate, against injustice. But with changed conditions they may no
longer serve a useful purpose but on the contrary have become a
hindrance rather than a help to justice. There has also been a good
deal of feeling in the committee and elsewhere that the law of
evidence should now be less tender to criminals generally. With the
improvements mentioned it seems to us reasonable to expect that
the right amount of weight will be given to some kinds of evidence
previously rejected as likely to be too prejudicial to the accused. 49
In fairness to the Committee it should be pointed out that the
basic legal objective the Committee was trying to promote throughout the whole report was a general widening of the rules of admissibility of evidence. This objective was demonstrated in the comments by the Committee under the general principles section in the
report. In paragraph 14, the Committee said:
Since the object of a criminal trial should be to find out if the
accused is guilty, it follows that ideally all evidence should be
admissible which is relevant in the sense that it tends to render
probable the existence or non-existence of any fact on which the
question of guilt or innocence depends. 50
48.
49.
50.
Eleventh Report, supra note 1,
[d.
[d. at 9.
~
2l(vi), at 12.
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In the same vein in paragraph (20) the Committee stated:
We have throughout aimed at reducing the exceptions to admissibility under the present law. Over and over again judges have had
to reject evidence which would obviously have been valuable for
the ascertainment of the truth, and could not possibly have caused
any injustice, because "on the authorities" it was inadmissible
. . . . Our firm conclusion is that it is right to extend admissibility
as far as is possible without the risk of injustice to the accused. The
difficulty is to agree on how far this means. 51
And in paragraph 24, they said:
Our main object, then, has been to go as far in getting rid of
restrictions on admissibility of evidence as is possible in the "modern conditions" referred to in our terms of reference . . . . We
justify the reform which we recommend for this purpose not only
because of the changed conditions to which we have referred but
mainly on the ground that there is no clear reason why the restrictions should ever have existed. 52
When this part of the debate is distilled down to its very essence, the main area of disagreement between proponents and opponents of the changes appears to have been their viewpoint on
who criminal defendants are. It is obvious that the Committee was
particularly concerned with the so-called professional criminals.
These defendants supposedly have been through the police procedure and the court system a number of times, and supposedly they
know all the tricks. The Committee was apparently concerned that
these defendants were able to manipulate the rules of evidence in
their favor and obtain unjust acquittals by inequitable means. In
this regard, the Committee seems to have been impressed by
Bentham's following criticism of the right of silence:
If all criminals of every class had assembled, and framed a
system after their own wishes, is not this rule the very first which
they would have established for their security? Innocence never
takes advantage of it. Innocence claims the right of speaking, as
guilt invokes the privilege of silence. 53
51.
52.
53.
[d. at 10.
[d. at 13.
PROCEEDINGS, supra
note 3, at 38 (quoting Jeremy Bentham).
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This comment was cited with approval in the Eleventh Report54 and
fit in with the Committee's criticism of the "sporting theory"" of
criminal justice. 56
The opponents of the changes, on the other hand, were concerned with the other end of the scale of potential defendants. Professor Ronald Dworkin of University College, Oxford, put it this
way:
. [T]he argument hardly supports the recommendations made
for it is just the "sophisticated" criminals who have least need of
the police caution in any form, are best able to resist minor threats
and inducements, and have the most poise and skill under questioning, both inside and outside court.
Those who will suffer from the changes, on the contrary, are
the confused and inarticulate, including immigrants, who are insecure in the language, bewildered by legal complexities, and frightened of formal authority. These men and women already suffer,
before police and jury, from prejudices that are to some degree
inevitable, and the effect of the changes recommended must be to
increase the inequalityY
Another opponent, Mr. Justice F. M. Neasey of the Tasmanian
Supreme Court said:
The Committee seems to have overlooked the suspect who
mayor may not be guilty, depending on how the law is to be
applied to an often confused and complex set of facts. 58
In reference to the Committee's criticism of the right of silence,
54. Eleventh Report, supra note 1, ~ 31, at 18.
55. Bentham called one of the arguments in favor of the right of silence the "Fox
Hunter's Reason." It consisted of:
introducing upon the carpet of legal procedure the idea of fairness in the sense of
which the word is used by sportsmen. The fox is to have a fair chance for his life;
he must have leave to run a certain length of way for the express purpose of giving
him a chance to escape.
PROCEEDINGS, supra note 3, at 28 (Loveday, J.).
Williams expresses the sporting theory in modern terms: "to try to get an accused person
to give evidence against himself was not playing the game; it was hitting below the belt, or
hitting a man when he was down." WILUAMS, supra note 2, at 51. Both Bentham and Williams
are highly critical of the "sporting theory." [d. at 51-52; PROCEEDINGS, supra note 3, at 28-29
(Loveday, J.).
56. Eleventh Report, supra note 1, ~ 27, at 15.
57. Letter to The Times (London), July 3, 1972, at 15.
58. PROCEEDINGS, supra note 3, at 19.
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including the quoted passage from Bentham, Mr. Justice Neasey
responded with the following argument made by Wigmore: 59
So far as Bentham's argument goes, i.e. for the individual
case, it is irrefutable. Assuming this man to be guilty, there is no
good reason to exempt him.
There is no escape from this fundamental truth, so long as
we confine ourselves to the assumption. on which it rests. That
assumption is that the person charged is guilty. But assume him
innocent, and a different problem is presented - a problem to
which Bentham's arguments did not do justice. The truth is that
the privilege exists for the sake of the innocent - or at least for
reasons irrespective of the guilt of the accused. 50
This last idea gained particular momentum in the discussions
surrounding abolition of the unsworn statement from the dock. Mr.
R.J.V. St. John, President of the Council of Civil Liberties in New
South Wales, said:
Most people who occupy a criminal dock are neither articulate
nor sophisticated. Their background is often not one which equips
them well in the verbal medium. A great number need assistance
in formulating simple narrative statements. 51
Proponents of the changes were particularly adamant that the unsworn statement from the dock was being used not only by the
weak and inarticulate but also by the strong and articulate. They
referred to examples such as an accountant or company director
involved in an embezzlement or fraud case.
Another alleged abuse of unsworn statements from the dock
was that of impugning the character of the Crown's witnesses. Because the defendant cannot be cross-examined, he is relatively free
to assert or imply improper motives or conduct on behalf of other
witnesses. This can occur when there are police witnesses, of course,
but it presents a greater concern when the offenses charged are rape
or other sexual offenses and the prosecutrix may be subjected to
unwarranted and irrefutable attack. This advantage has given rise
to the colloquialism "Coward's Castle" to describe the venue for the
unsworn statement.
59.
60.
61.
[d. at 18.
[d. at 18, citing 8 WIGMORE, EVIDENCE
PROCEEDINGS, supra note 3, at 78.
~
2251, at 308 (3rd ed. 1940).
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B.
19
In the House of Lords
On February 14, 1973, the Eleventh Report was the topic of
debate in the House of Lords. The opinions of the Law Lords very
nearly mirrored those expressed in external debate. The Lord Chief
Justice of England, Lord Widgery, noted that the right of silence is
not a touc~stone of English legal history, but is the product of two
fairly recent official promulgations-the Criminal Evidence Act of
1898 and the Judges' Rules of 1912. 62 The Lord Chancellor (now
Lord Hailsham) drew attention to the artificiality of the right, when
he stated:
Of course Bentham was in favour of the right of silence, and so am
I, if by that we mean that nothing can be done or might be done
to a man who refuses to speak. But, surely, all the behaviour of an
accused person who is confronted with a charge is something which
the tribunal offact is entitled to consider in the context of the other
evidence. Take a man . . . who is accused of incest with his daughter. His wife comes to him with the weeping child and tells him
what she has learned. To use the language of the Bar Council he
is entitled to say to her:
In this country, a person is innocent until proved guilty. If
you think I have committed an offence, prove it. I do not wish
to be interrogated. I wish to seek advice. I do not intend to
answer any questions until you tell me what your case against
me is.
I submit that a man so accused would have every right to say this
or, more literally, he would have every right to remain entirely
silent. But how artificial can you get in maintaining that if counsel, or the judge, or, worse still, the jury, discuss with candour the
possible reasons for his silence they are depriving him of one of his
fundamental liberties?63
Lord Diplock echoed these sentiments when he asked:
What has been the complaint of those who have been criticising
the proposals in the Bill about the right to silence? What do the
two clauses say? They say that all proper inferences can be drawn
from the accused's failure to give evidence. I do not think anyone
who has any experience of criminal trials, or anyone who can possi62.
338 ParI. Deb., H.L. (5th ser.) 1625-26 (1973).
63.
[d. at 1592.
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bly believe that a jury is a suitable tribunal for deciding innocence
or guilt, would doubt for one moment that if an accused fails to go
into the witness box when there is a prima facie case against him
a jury draws the proper inference, which is all that this Bill says it
may draw-that if there was not something that he was afraid to
be cross-examined about he would have gone into the box. Certainly, my experience in trying cases was that the jury drew that
inference in proper cases; also, that they drew the proper inference
-though one was not allowed to comment on that-when the
accused brought forward at the last moment a defence which, if he
had been innocent, it would have been natural to expect him to
give it to the police. And my Lords, add this further absurdity
about the comment upon failure to go into the witness box. As the
noble and learned Lord the Lord Chief Justice pointed out, the
prosecution may not comment upon it, but the judge may, provided that he does it in moderate and sensible terms; that is to say,
he indicates to the jury what would be a proper inference to draw. 54
The Lord Chancellor praised the jury for being able to apply
common sense to disputed questions of fact before them and said:
The main object of some lawyers seems to me to provide artificial
criteria which would not be applied anywhere except in the
strained atmosphere of a court. I agree with the Bar Council . . .
that 'the great majority of people who fall foul of the criminal law
or who are suspected of doing so are inarticulate or weak or fearful,
or inadequate or deprived.'
But these are just the people who talk naturally when confronted with an accusation. They do not remain silent. They do
not say: "In this country a person is innocent until he is proved
guilty." They are precisely the people who do not get the benefit
of the rule. What I am pleading for is not an adverse decision
against accused persons but a breath of fresh air, a little more
commonsense [sic] and a freeing from artificiality.55
And Lord Diplock, in what was perhaps a burst of unjudicial
enthusiasm, said:
[T]hank God!, a jury generally has enough commonsense [sic]
to ignore the mumbo-jumbo which I, as a judge, had to say to them
at the early stages of a case so that they forgot about it when they
went into the jury room. 55
64.
65.
66.
[d. at 1649.
[d. at 1593.
[d. at 1650.
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The contrary view was also forcefully stated by the Lords. Lord
Salmon, in his maiden speech, summed up his feelings in emotional
terms:
The principles upon which our system of justice rests are well
known, generally accepted and have hitherto never been threatened. My Lords, they are threatened now . . . . 67
Lord Foot expressed the same view in what he described as an
"extraordinary reversal" of the English principles of criminal justice:
It seems to me that if that recommendation were adopted we
should be taking something which has always in the past been
regarded as thoroughly repugnant, something which is likely to
lead to miscarriages of justice, and we should be elevating it and
giving it the blessing and approval of society; in other words, we
should be giving our blessing to the use of inducements to enable
accused persons to make statements and make confessions. 68
Lord Reid, with a background of Scottish law, voiced two major
considerations. First, nothing must be done which will prejudice the
innocent accused. Second, something must be done about public
disquiet regarding police methods. 69 As to the second consideration,
he said:
[I]f we are to start altering the present position we must alter it
in a direction which will lessen any temptation of the police to
overstep the mark. 70
Having presented the considerations, he proffered a "fair interrogation" as a solution in the following statement:
The purpose of the safeguards is not to give the guilty man a
sporting chance; it is to see that the innocent man is as fully safeguarded as human ingenuity can achieve. If we can achieve a fair
interrogation, then on what possible ground can any innocent person object? I can see none. As I say, it may be embarrassing, it may
be unpleasant; but I cannot see how an accused person can possi67.
68.
69.
70.
[d. at
[d. at
[d. at
[d. at
1604.
1602-03.
1612.
1613.
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bly object if he can be assured that his interrogation is going to be
entirely fair. 71
And the fairness of the interrogation, he noted, had to be measured
not only by the standards of the guilty man but also by the standards of the innocent man. With reference to his first major consideration his Lordship reminded:
You must bear in mind that an innocent accused person is often
stupid, he is often slow, he is Qften overawed and generally nervous. The result is that he must have a fair deal. If we start thinking
again from the beginning we must take as our basic test: Is this
giving that kind of man a fair deal?72
Lord Reid was joined by Lord Morris of Borth-y-gest in the requirement of this fair interrogation. Some system of checks in the interrogation was called for, they agreed, and they suggested such a safeguard might lie in the use of tape recordings or neutral observers. 73
Lord Morris emphasized:
. . . I want to make clear that in no circumstances would I support
the giving of any additional questioning power to the police without those safeguards, and it seems to me that the Committee are
giving additional powers to the police. I would not allow to the
police one jot or tittle of additional power to question anybody
beyond the power they have at present.1 4
The requirement of a system of checks in the present and future use
of police powers of interrogation was not seen as an attack on the
reputation or credibility of the police but rather as a concession to
human nature. Lord Gardiner, a former Lord Chancellor, expressed
it best when he said:
. . . [N]obody, whatever splendid body of men they may be, can
really be trusted with sweeping powers in a sphere the kernel of
which really is the temptation. . . to rely on confessions in police
stations. 75
71.
72.
73.
[d. at 1613-14.
[d. at 1612.
[d. at 1629 (Lord Morris); 1614-16 (Lord Reid); 1551 (Viscount Dilhoume); 1626-27
(Lord Widgery).
74. [d. at 1615-16 (Lord Reid).
75. [d. at 1580.
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The debate in the House of Lords was lengthy and complete. In all,
15 Lords spoke in the debate, and it gained wide attention.
C.
Conclusion
After all the debate, one could be forgiven for thinking that the
ultimate resolution must come as a grand climax. But that was not
to be. In England the great debate ended with a whimper; in New
South Wales it ended with a bang.
The general election of 1974 resulted in a change of government
in the United Kingdom; the new government took no action on the
Eleventh Report. As a result, the proposed changes to the right of
silence never came to a vote in Parliament, and the rest of the
proposals in the Eleventh Report died with those that would have
altered the right of silence.
In New South Wales the government listened carefully to the
debate in England and in Australia. It also considered the report of
that state's Criminal Law Revision Committee. As a result the government proposed only one change in the right of silence in New
South Wales, namely, the abolition of the unsworn statement from
the dock. 76 Thus the local issue assumed a narrow focus in 1974.
After a short but volatile debate on this narrow issue it was put to.
a vote; the result was the same. The great debate ended when the
state's upper house defeated the proposal.
76. Crimes and Other Acts (Amendment), Bill of 1974, introduced in the New South
Wales Legislative Assembly, Feb. 27, 1974, by the Attorney-General.
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