England limits the right to silence and moves towards an inquisitorial system of justice.

• Author: O'Reilly, Gregory W.

1. INTRODUCTION

   Britain's Parliament has adopted Prime Minister John Major's proposal to significantly curtail the right to silence.(1) The new law will allow judges and juries to consider as evidence of guilt both a suspect's failure to answer police questions during interrogation and a defendant's refusal to testify during trial.(2) Supporters of the new law had argued that change was greatly needed because the right to silence was "a charade which [has been] 'ruthlessly exploited by terrorists.'"(3) Proponents had also diminished the significance of the proposed changes, contending that the accused's silence will simply become "an item of evidence ... scarcely a major infringement of a defendant's liberty ... [and that the change] ... should dissuade offenders from thwarting prosecution simply by saying nothing."(4)

   These views, however, contradicted the conclusions of two publications released by the Royal Commission on Criminal Justice in 1993(5) and spurred the vocal opposition of a number of groups. Those who opposed Major's proposal noted that even the innocent have valid reasons for remaining silent, and that the proposal would not reduce crime,(6) but would increase the likelihood of false confessions and erroneous convictions.(7) Those opposed to Major's proposal also argued that it would undermine the presumption of innocence and erode England's accusatorial system of justice.(8)

   Major's new law will curtail the right to silence by allowing judges and jurors to draw adverse inferences when a suspect remains silent. It is the latest in a series of similar proposals by English police and politicians,(9) and it adopts restrictions on the right to silence which Parliament imposed on Northern Ireland in 1988.(10) The new law contains four parts: (1) judges and jurors may draw adverse inferences when suspects do not tell the police during interrogation a fact relied upon by the defense at trial if, under the circumstances, the suspect could have been expected to mention the fact; (2) if the accused does not testify, judges and prosecutors may invite the jury to make any inference which to them appears proper--including the "common sense" inference that there is no explanation for the evidence produced against the accused and that the accused is guilty;(11) (3) judges and jurors may draw an adverse inference when suspects fail to respond to police questions about any suspicious objects, substances, or marks which are found on their persons or clothing or in the place where they were arrested; and (4) judges and jurors may draw adverse inferences if suspects do not explain to the police why they were present at a place at or about the time of the offense for which they were arrested.(12)

   The new law purports to control crime by curtailing the right to silence, forcing suspects to confess, and thereby increasing convictions. While similar proposals have surfaced with great fanfare in the past, and have been adopted in Northern Ireland and Singapore, there is little or no evidence that they reduce crime.(13) Police failure to obtain confessions has not lead to the release of significant numbers of criminals. In fact, only a small percentage of suspects fail to answer police questions, and evidence reviewed by the Royal Commission suggests that they are convicted at a slightly higher rate than suspects who answer police questions.(14) Moreover, even if Major's new law increases confessions and convictions, it will not reduce crime, because if the criminal justice system has a failing, it is not found in the low percentage of cases lost in courts, but in the high percentage of cases where the criminal is never caught. For example, while only twelve percent of reported crimes end up in court, over ninety percent of those cases end in conviction.(15) Even if Major's new law does ot follow the pattern of similar proposals, and succeeds in incrementally raising the number of confessions and the conviction rate, it will do nothing about the vastly greater number of cases where no suspect is caught. Indeed, the Royal Commission concluded that adverse inferences would increase neither confessions nor convictions.(16) The lack of evidence supporting the use of adverse inferences as a means of controlling crime has not deterred supporters of such measures in England, or even in the United States.(17) Given that the ability of Major's new law to control crime is questionable, perhaps its appeal is purely symbolic.(18)

   Forcing or strongly inducing suspects to talk, however, has practical consequences. The new law could prompt false confessions by weak suspects and erroneous convictions of those who, although innocent, failed to offer cogent explanations for their behavior or who became confused. More significantly, curtailing the right to remain silent will shift the criminal justice system from its accusatorial focus on proof by witnesses and extrinsic evidence, to an inquisitorial focus on the interrogation of suspects to gain evidence of their guilt. This change will undermine the accusatorial system of justice, jeopardizing many of its benefits. Among these benefits is the foundation of an open and democratic society--a strictly limited government, restrained in its ability to compromise individual dignity, privacy, and autonomy. Such a move is inconsistent with the inherent distrust of authority which helped shape limited and democratic government.(19)

   England's new limits to the right to silence could influence policy in the United States. One cannot escape the significance of the fact that, as Ronald Dworkin noted, "the ancient right [to silence] is about to be extinguished in the nation which invented it."(20) Moreover, unlike Singapore, which has adopted similar limits, Britain is a democracy; it has not become a police state, and citizens may still criticize the government.(21) This democratic context makes the new limits on the right to silence appear more credible and less extreme.

   Like their counterparts in England, some American law enforcement officials have advocated limiting the right to silence. For instance, in 1989, the United States Department of Justice advocated adopting a litigation strategy to urge the Supreme Court to allow adverse inferences from silence to remove a "shelter" for the guilty and provide an incentive for the accused to testify.(22) Others have denigrated the right to silence as a "relic of the Star Chamber" which is no longer relevant in today's criminal justice system and have advocated limiting the right, and adopting the inquisitorial system of justice in the United States.(23) Advocates of this view could find a responsive audience in the United States, as the press, the public, and politicians focus on crime and an extraordinary array of proposals aimed at its control.(24) Thus, England's attempt to control crime by limiting the right to silence merits close study, especially in light of the potentially fundamental impact of such a change on the American system of justice.

2. THE DEVELOPMENT OF THE RIGHT TO SILENCE AND THE ACCUSATORIAL SYSTEM

   The development of the right to silence in England spanned hundreds of years(25) and was intimately tied to the great struggle between rival systems of criminal procedure-the accusatorial common law courts and the inquisitorial ecclesiastical courts.(26) These systems were fundamentally divided on a key method of investigation and adjudication: reliance on the accused to furnish testimonial evidence of their guilt. The common law courts disfavored this method and came to rely primarily upon independent evidence. By contrast, confession was the essential component of the inquisitorial system employed by the ecclesiastical courts. In the battle between these systems, the common law system has maintained the upper hand in England and has helped shape that nation's--and later the United States'--system of limited, democratic government(27) and accusatorial criminal procedure.(28)

   1. RIVAL SYSTEMS OF CRIMINAL PROCEDURE

      Until early in the thirteenth century, both systems relied upon trial by compurgational oath and trial by ordeal, including ordeal by battle, as methods of adjudication.(29) By early in the thirteenth century, trial by compurgational oath or "cononical purgation," had fallen into disuse as it had become little more than a corrupt swearing contest. Under this method, the accused, often with the support of others, would take an oath of denial. Although in earlier times supporters had to have personal knowledge of the event at issue, this requirement fell by the wayside; instead, arcane and complex forms of oath came into use. If the swearer erred, the oath was considered "burst," and the swearer's falseness was revealed.(30) Until early in the thirteenth century, trial by ordeal was the primary method of adjudication. Its verdicts were considered just because the result of the ordeal was viewed as a divine judgment.(31) In 1215, however, the Fourth Lateran Council removed this divine rationale and barred the clergy from administering ordeals.(32) This helped prompt both systems to find new methods of adjudication.(33)

      The division between the two systems became pronounced early in the thirteenth century, a period when both common law and ecclesiastical courts maintained spheres of jurisdiction in England.(34) While most offenses were tried in common law courts, ecclesiastical courts had widejurisdiction and were not limited to what people today might consider religious affairs. For instance, they tried cases involving "sins of the flesh" such as fornication and adultery, and miscellaneous offenses such as usury, disorderly conduct, and drunkenness.(35) Early in the fourteenth century, attempts were made to limit the ecclesiastical courts' jurisdiction over laymen to matrimonial and testamentary matters. These limits did not, however, remain fixed and were not rigidly enforced.(36) Consequently, the ecclesiastical...