Editing Right to silence (section)

====England and Wales====
{{Main|Right to silence in England and Wales}}
The right to silence has a long history in England and Wales, first having been codified in the [[Judges' Rules]] in 1912. A defendant in a [[criminal trial]] has a choice whether or not to give [[Evidence (law)|evidence]] in the [[proceedings]]. Further, there is no general duty to assist the police with their inquiries.

At common law, and particularly following the passing of the [[Criminal Justice and Public Order Act 1994]],<ref>See also Home Office policy paper [https://www.gov.uk/government/publications/pace-code-c-2008 PACE Code C] (1998)</ref> adverse inferences may be drawn in certain circumstances where the accused:

* fails to mention any fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention;
* fails to give evidence at trial or answer any question;
* fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested; or
* fails to account on arrest for his presence at a place.

There may be no conviction based wholly on silence.<ref name="EnglandLawInference" /><ref name="CPSInference" /> Where inferences may be drawn from silence, the court must direct the jury as to the limits to the inferences which may properly be drawn from silence.<ref>See the [http://www.jsboard.co.uk/criminal_law/cbb/index.htm specimen direction] {{webarchive |url=https://web.archive.org/web/20071016051149/http://www.jsboard.co.uk/criminal_law/cbb/index.htm |date=16 October 2007 }} of the [[Judicial Studies Board]].</ref>

In respect of those questioned by the [[Serious Fraud Office (UK)|Serious Fraud Office]], the right to silence has been reduced by virtue of Section 2 of the Criminal Justice Act 1987.<ref>{{cite web|url=http://www.legislation.gov.uk/ukpga/1987/38/section/2|title=Criminal Justice Act 1987|website=www.legislation.gov.uk|access-date=17 February 2018}}</ref> The right has also been reduced for those accused of terrorist offences.

The UK has some of the strictest [[key disclosure law#United Kingdom|key disclosure laws]] of the western world. Under Section 49<ref>{{cite web|url=http://www.opsi.gov.uk/acts/acts2000/ukpga_20000023_en_8#pt3-pb1-l1g49 |title=Regulation of Investigatory Powers Act 2000, s. 49 |publisher=Opsi.gov.uk |access-date=2011-12-21}}</ref> and Section 53<ref>{{cite web|url=http://www.opsi.gov.uk/acts/acts2000/ukpga_20000023_en_8#pt3-pb3-l1g53 |title=Regulation of Investigatory Powers Act 2000, s. 53 |publisher=Opsi.gov.uk |access-date=2011-12-21}}</ref> of the [[Regulation of Investigatory Powers Act 2000]] (RIPA), it is an offence to fail to disclose when requested the key to encrypted data (with a penalty of two years in prison, or five years with regards to child sex abuse cases). Schedule 7 of the [[Terrorism Act 2000]] has been used to convict people who have refused to disclose their password to customs.

=====History=====
Warnings regarding the right against self-incrimination may have originated in [[England and Wales]]. In 1912, the judges of the [[King's Bench Division|King's Bench]] issued the [[Judges' Rules]]. These provided that, when a police member had admissible evidence to suspect a person of an offence and wished to question that suspect about an offence, the officer should first caution the person that he was entitled to remain silent. However, the warning about the possibility of anything the male suspect said being potentially used against him predates even that.

The pre-trial operation of the privilege against self-incrimination was further buttressed by the decision in ''Ibrahim v R'' [1914] AC 599 that an admission or confession made by the accused to the police would only be admissible in evidence if the prosecution could establish that it had been voluntary. An admission or confession is only voluntary if made in the exercise of a free choice about whether to speak or remain silent:

In ''R v Leckey'' (1943) CAR 128 the Court of Criminal Appeal said:

{{Blockquote|... an innocent person might well, either from excessive caution or for some other reason, decline to say anything when charged and cautioned, and if it were possible to hold that out to a jury as a ground on which they might find a man guilty, it is obvious that innocent persons might be in great peril.}}

Therefore, a caution of the form of:

{{Blockquote|You have the right to remain silent, but anything you do say will be taken down and may be used in evidence.}}

was used. Major reform to the questioning and treatment of suspected offenders occurred in 1984 when the [[Police and Criminal Evidence Act 1984|Police and Criminal Evidence Act]] came into force. Under Code C the right to silence was amended by allowing adverse inferences to be drawn at a court hearing in cases where a suspect refuses to explain something, and then later produces an explanation (see [[right to silence in England and Wales]]).<ref>{{cite web|url=http://www.homeoffice.gov.uk/publications/police/operational-policing/pace-codes/pace-code-c |title=PACE Code C 2008 |publisher=Homeoffice.gov.uk |date=17 May 2010 |access-date=2014-07-09}}</ref> In other words, the jury is entitled to infer that the accused fabricated the explanation at a later date, as he refused to provide the explanation during police questioning. The jury is also free to make no such inference. The new caution is:

<blockquote>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.</blockquote>

If questioning is forthcoming, "when questioned" may be replaced with "now". In cases in which the suspect has clearly nothing to gain by failing to remain silent:

<blockquote>Anything you do say may, and will, be given in evidence.</blockquote>

or:

<blockquote>You do not have to say anything unless you wish to do so, but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.<ref>{{Cite book|last=Oshitokunbo|first=Oshisanya, 'lai|url=https://books.google.com/books?id=xMvOBAAAQBAJ&q=You+do+not+have+to+say+anything+unless+you+wish+to+do+so,+but+I+must+warn+you+that+if+you+fail+to+mention+any+fact+which+you+rely+on+in+your+defence+in+court,+your+failure+to+take+this+opportunity+to+mention+it+may+be+treated+in+court+as+supporting+any+relevant+evidence+against+you.+If+you+do+wish+to+say+anything,+what+you+say+may+be+given+in+evidence&pg=PA269|title=An Almanac of Contemporary and Comparative Judicial Restatements (ACCJR Supp. ii Public Law): ACCJR Supplement ii|date=2020-01-02|publisher=Almanac Foundation|isbn=978-978-51200-5-9|language=en}}</ref>{{Citation needed|date=November 2010}}</blockquote>

or even (in circumstances where no adverse inference can be drawn from silence):

<blockquote>You do not have to say anything, but anything you do say may be given in evidence.</blockquote>