The quiet erosion of the right to silence

Words: Tom Brautigam

17th-century arguments for the right to silence under questioning can appear a pretty inconsequential element in a state’s justice system, especially compared with other practices that took place in 1600s England, like execution by burning. But this principle was once an important aspect of both English and American traditions – and in recent decades of English law, has faced a subtle attack.

The right of suspects to refuse to provide the authorities with any information about themselves is crucial to the principle of innocent until proven guilty, where the responsibility to present evidence and prove guilt lies with the prosecution. This is especially true when facing authorities who might seek to arrest people with little or no evidence that they have committed a crime.

When intimidated or confused, an individual might inadvertently admit to a crime while trying to be helpful, unaware their confessed actions are illegal. In this, they will have created a criminal case against themselves. Where no right to silence exists, authorities can arrest suspects against whom they hold no evidence, hoping to manipulate a confession out of them.

Radical campaigner John Lilburne gained massive popular following in 1630-40s London for his defiance of prosecuting authorities and his demand that not incriminating himself during questioning was a ‘fundamental natural right’. Arrested in 1638 for illegal pamphleteering, Lilburne was brought before the Court of Star Chamber to be questioned. Lilburne was required by the Court, chaired by William Laud, Charles I’s Archbishop of Canterbury, to swear on the Bible to answer truthfully all questions put to him.

Lilburne refused. His position was that, as a devout Christian, he would be unable to lie or remain silent once having sworn. Being required to take the oath would therefore force him to potentially incriminate himself.

He instead demanded to be told of the evidence against him in advance of questioning, and to be given an opportunity to confront any witnesses. The Court and Archbishop Laud insisted that the proceeding could not begin until he had sworn, but Lilburne continued to refuse.

John Lilburne was the first to make this defiant case before the Star Chamber, earning a name for himself as well as a sentence of over 500 lashes and indefinite imprisonment. His cause became so high-profile that there were riots in support of him, and in 1641 he was released and compensated on the orders of the House of Commons. Lilburne would go on to use the same arguments in 1653, when prosecuted by the Cromwellian government, initially refusing even to confirm that he was the John Lilburne named in the court documents.

It was in the emerging American nation that the right to silence was more quickly cemented, thanks to its puritan founders, who had extensive ideological links with the radicals of Civil War London. Several founding State Constitutions, including Virginia and Pennsylvania, clearly stated that a citizen could not ‘be compelled to give evidence against himself’, a clause which would subsequently form part of the 5th Amendment to the 1791 Bill of Rights, further interlocking this right with the principle of being innocent until proven guilty. The duty was on the prosecutors to demonstrate guilt, without relying on any missteps by the accused.

Although enshrined in the US Constitution, ‘compelling’ someone to give evidence against themselves gradually came to be seen as only applying to torture or brutal questioning before trial. People were no longer as afraid as Lilburne had been to lie under oath. In effect, suspects in the early 20th Century USA still had to answer questions which could lead to them incriminating themselves.

But this was struck down in 1966 by the US Supreme Court, in Miranda vs Arizona, during which the judge ruled that all suspects must be informed that they did not need to answer questions from police. Any answers given to police before this warning would be inadmissible. Chief Justice Warren cited John Lilburne during his ruling, highlighting the ideological thread running back to revolutionary England.

Miranda vs Arizona has since become synonymous with the familiar warning all US police give suspects: ‘you have the right to remain silent’ – so much so it is known as ‘Mirandizing’ a suspect.

In Britain, the right to silence before trial had developed over the centuries as an unwritten tradition in common law, but was not officially stated in judicial practice until 1912 – a measure taken in part to prohibit police from physically abusing suspects to gain information. It remained legally undefined, simply forming part of the larger principle of ‘innocent until proven guilty’.

The unwritten customs and practices of English common law allowed the right to silence to develop in the legal system without significant political interference into the late 20th century, with British police developing their own formulation of the Miranda caution: ‘You have the right to remain silent, but anything you do say…’. Suspects were free to remain silent during both police questioning and trial, the duty to prove guilt remaining with the prosecution.

The 1994 Criminal Justice Act, a deeply controversial piece of legislation at the time, modified the exercise of many rights and customs that existed in British society. Alongside increased criminalisation of trespass, aimed at rave culture, squatters and Traveller communities, the act also severely modified a citizen’s right to silence under police questioning: authorities were now allowed to draw a negative conclusion when a suspect refused to answer questions.

The British police caution became ‘You have the right to remain silent, however it may harm your defence if you do not mention when questioned something which you later rely on in court,’ removing the complete burden on the prosecuting authorities to prove a case against the accused.

Before seeing the full case and evidence against them, suspects would be required to answer questions, or face their silence harming their defence at a later trial. Included in the topics of questions arrestees must answer was their reason for being in a certain location, or carrying whatever they happened to have on them – details of particular relevance to ‘stop and search’ arrests. Stop and search rules require people stopped to answer questions put them if the police deem they have ‘reasonable suspicion’, a threshold many feel is too low, particularly given the racial disparity in stop and search numbers.

This regression realigned the burden of proof, placing a greater requirement on those accused of wrongdoing to prove their innocence, rather than on the prosecutors prove their guilt. The change is antithetical to John Lilburne’s understanding of natural rights, and represented a significant reduction in the liberties that British citizens had valued for centuries.

The absence of a set of clearly codified rights, placed above the law, allows for the ‘subtle encroachments on individual liberty’ by legislators warned of by Justice Warren in 1966, as well as a lack of public awareness and discussion of certain rights altogether. Rights like the right to silence, which were key elements of our political and cultural structure for centuries, can slip into unarticulated sentiments, where they are vulnerable to a quiet degradation. The right to silence, rather than a crucial protection for citizens, is now viewed by some as a dangerous cloak under which the guilty may hide.

learn more

  • BOOK: The Common Freedom of the People: John Lilburne and the English Revolution – Michael Braddick
  • WEBSITE: ‘Know Your Rights’, GOV.UK
  • BOOK: Crime, Protest and Police in Modern British Society – Kenneth Morgan

Tom Brautigam is a former secondary school teacher. He is currently completing a PhD on ‘The Levellers and Radical Religious Sects’ at the University of Edinburgh. Follow him on Twitter.