Anglo Australian Criminal Procedure--The Right of Silence

Westling, Wayne T.
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Texas Tech Law Review

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. 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, hearsay evidence, 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.

Right of silence, England, United States
7 Tex. Tech L. Rev. 1