Article 6 ECHR and Right to Silence

The right to silence is fundamental to the notion of a fair trial as envisaged under Article 6 of the European Convention on Human Rights (ECHR). This article explores the right to silence, particularly in light of the provisions in Sections 34–38 of the Criminal Justice and Public Order Act 1994 (PACE). These provisions permit courts to draw adverse inferences from an accused's silence under specific circumstances. 

European Convention on Human Rights and Right to Silence
Article 6 of the ECHR enshrines the right to a fair trial. While the text does not explicitly mention the right to silence, the European Court of Human Rights (ECtHR) has clarified in cases like Murray v United Kingdom (1996) that this right lies at the heart of fair procedures under Article 6. In Murray, the ECtHR recognised that the right to remain silent and the privilege against self-incrimination are integral to preventing miscarriages of justice and protecting individuals from undue pressure by authorities.

The ECtHR first acknowledged the right to silence in Funke v France (1993), and subsequently in Murray v United Kingdom emphasised that this right is a key element of a fair trial. The reasoning behind this stance is that the right to silence safeguards against wrongful convictions by preventing improper coercion and ensuring that justice is administered fairly.

The above principles are now widely accepted, with scholars and judges alike recognising the right to silence as a core component of Article 6. However, tensions arise when domestic laws allow for adverse inferences to be drawn from an accused’s silence, as is the case under the PACE.

Criminal Justice and Public Order Act 1994
Sections 34–38 of the PACE introduce the possibility of drawing adverse inferences from an accused’s silence in certain situations. These provisions raise important questions about whether they undermine the fair trial rights guaranteed by Article 6 ECHR.

Section 34 allows courts to draw inferences if an accused fails to mention a fact during police questioning that is later relied upon in their defence. The term “fact” has been interpreted broadly to cover any relevant detail that could reasonably have been expected to be mentioned at the time of questioning. The law insists that the accused must have had the opportunity to consult a solicitor before inferences can be drawn. This provision was introduced to comply with the ECtHR’s ruling in Murray, which held that denying access to legal advice could compromise the fairness of proceedings.

Sections 35–37 permit inferences to be drawn in other scenarios: if the accused remains silent at trial, fails to account for objects or marks in their possession, or does not explain their presence at a particular location. These sections similarly include safeguards, such as the requirement for police officers to inform suspects of the consequences of their silence in plain language and the right to consult a solicitor.

Despite these safeguards, the provisions have been subject to criticism. Some argue that they create an imbalance by placing undue pressure on defendants to speak, potentially infringing on the very right to silence that Article 6 seeks to protect. To critically assess whether the right to silence remains central to fair procedures under Article 6, it is necessary to explore both sides of the argument.

Arguments against Adverse Inferences
Those who argue that the right to silence should be absolute contend that it is a vital protection against wrongful convictions. The prosecution, it is argued, should rely solely on evidence rather than seeking to infer guilt from an accused’s silence. Blackstone’s Criminal Practice 2011 notes ongoing debates about whether the adverse inference provisions truly align with fair trial guarantees, despite the ECtHR’s ruling that the right to silence is not absolute.

Furthermore, scholars like Susan Easton highlight the dangers of leaving decisions to juries who may rely on common-sense assumptions, such as the belief that an innocent person would naturally speak out in their defence. Easton argues that such assumptions are flawed because silence can result from a range of reasons unrelated to guilt, such as fear or the desire to protect others.

Arguments for Adverse Inferences
Proponents of the PACE’s provisions argue that they strike a fair balance between protecting the accused’s rights and ensuring justice is done. The safeguards built into the legislation, such as the requirement for legal advice and judicial oversight, are designed to prevent misuse of the provisions and limit the risk of wrongful convictions. Judges must carefully assess whether a defendant’s silence was reasonable under the circumstances before allowing adverse inferences to be drawn.

Supporters also note that the law recognises the importance of flexibility in ensuring justice. For instance, under Section 38, courts have the discretion to exclude evidence if relying on it would be unfair in the context of the case. This catch-all provision allows judges to maintain fairness even in complex or unusual cases.

The above analysis suggests that the ECtHR’s statement in Murray v United Kingdom remains largely accurate: the right to silence is indeed a crucial aspect of fair procedure under Article 6 ECHR. However, the right is not absolute and must be balanced against the need to ensure that justice is served. The adverse inference provisions in Sections 34–38 of the PACE introduce mechanisms to encourage accused persons to explain themselves, while still providing safeguards to protect against injustice.

While the PACE’s provisions represent a pragmatic approach to criminal justice, they do not undermine the right to silence in a manner inconsistent with Article 6. Instead, they reflect the ECHR’s recognition that rights must be balanced against the broader public interest, provided that sufficient safeguards are in place to protect the fairness of the trial.