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The Right to Silence in England and Wales

  • Fenella M. W. Billing
Chapter

Abstract

This chapter commences with a description of the human rights framework in England and Wales, which visibly comes under the framework of the ECHR with the enactment of the Human Rights Act 1998 (UK). In examining how the balance between effectiveness of law enforcement and fairness to the suspect or accused is maintained in the domestic law of England and Wales, attention is focused again in this chapter on the limitation and protection the right to silence and the right against self-incrimination. Similarly to the national law in Denmark, there is continuity between the investigative and trial phases in national criminal proceedings in England and Wales. This is demonstrated by looking into the connections in the law between, for example, the manner of advising a suspect of the right to silence, the availability of pre-trial legal advice and the drawing of inferences of guilt from the accused’s silence at trial. The law relating to confessions and administrative questioning powers as well as covert surveillance are also examined. Together with Chaps.  3 and  5, this chapter lays the foundation for a comparison with the national laws of Denmark and Australia in Chap.  6 showing the how the differences in procedural rules about the right to silence may cause admissibility problems in transnational cases. It also becomes part of the vertical perspective in Chap.  7, looking at the question of uniformity of trust-building minimum standards.

References

  1. Bentley D (1998) English criminal justice in the nineteenth century. The Hambledon Press, LondonGoogle Scholar
  2. Brawn D (2006) The Court of Queen’s Bench of Manitoba 1870–1950: a biographical history. University of Toronto Press, TorontoCrossRefGoogle Scholar
  3. Cape E, Namoradze Z, Smith R, Spronken T (2010) Effective criminal defence in Europe. Intersentia, AntwerpenGoogle Scholar
  4. Choo A (1989) Improperly obtained evidence: a reconsideration. Legal Stud 9:261–283CrossRefGoogle Scholar
  5. Craig P, De Búrca G (2015) EU law: text, cases and materials, 6th edn. OUP, OxfordCrossRefGoogle Scholar
  6. Easton S (2014) Silence and confessions: the suspect as a source of evidence. Palgrave Macmillan, HampshireCrossRefGoogle Scholar
  7. Emmerson B, Ashworth A, Macdonald A (eds) (2012) Human rights and criminal justice, 3rd edn. Sweet & Maxwell, LondonGoogle Scholar
  8. Gans J, Palmer A (2014) Uniform evidence. OUP, SydneyGoogle Scholar
  9. Harris DJ, O’Boyle M, Bates EP, Buckley CM (2014) UK withdrawal from the convention? A broader view. Available via the UK Constitutional Law Association. http://ukconstitutionallaw.org/2014/07/24/david-harris-michael-oboyle-ed-bates-and-carla-buckley-uk-withdrawal-from-the-convention-a-broader-view/. Accessed 4 Sept 2014
  10. Helmholtz RH (2004) The Oxford history of the laws of England, vol 1, The canon law and ecclesiastical jurisdiction from 597 to the 1640s. OUP, OxfordCrossRefGoogle Scholar
  11. Helmholtz RH, Gray CM, Langbein JH, Moglen E, Smith HE, Alschuler AW (1997) The privilege against self-incrimination: its origins and developments. University of Chicago Press, ChicagoGoogle Scholar
  12. Howse T (2013) England. In: Ligeti K (ed) Toward a Prosecutor for the European Union, vol 1, A comparative analysis. Hart, OxfordGoogle Scholar
  13. Langbein JH (2003) The origins of adversary criminal trial. OUP, OxfordGoogle Scholar
  14. Malek HM (gen. ed) (2010) Phipson on evidence, 17th edn. Thomson Reuters (Legal) Ltd, LondonGoogle Scholar
  15. Mirfield P (2003) Silence, confessions and improperly obtained evidence. Clarendon, OxfordGoogle Scholar
  16. Richardson PJ (ed) (2011) Archbold 2011: criminal pleading, evidence and practice. Sweet and Maxwell, LondonGoogle Scholar
  17. Spronken T (2010) EU-wide letter of rights in criminal proceedings: towards best practice. http://digitalarchive.maastrichtuniversity.nl/fedora/get/guid:2ba696f9-993e-42ca-922f-911a9e96e73b/ASSET1. Accessed 15 Jan 2014
  18. Starmer K, Strange M, Whitaker Q (2001) Criminal justice, police powers and human rights. Blackstone Press Limited, LondonGoogle Scholar
  19. Stone R (1995) Exclusion of evidence under Section 78 of the Police and Criminal Evidence Act: practice and principles. Web JCLI 3:10–17Google Scholar

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© Springer International Publishing Switzerland 2016

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Authors and Affiliations

  • Fenella M. W. Billing
    • 1
  1. 1.Department of LawAarhus UniversityAarhusDenmark

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