Abstract
The right of silence is upheld as a keystone of criminal justice but this book charts how the adoption of crime control measures following implementation of the Criminal Justice and Public Order Act 1994 (CJPOA) have undermined this right. As Quirk highlights, inferences drawn at court over a suspect exercising their right of silence in the police station are no longer restricted to subsequent fabrication, but can be used for punitive—as well as evidential—purposes against those not cooperating with the police at the earliest opportunity (p. 5). This has essentially made the police interview a core part of the trial, but without the benefit of the safeguards or the rules of natural justice that attend a fair trial (Jackson, 2001: 174). While the main focus of the book is on the CJPOA 1994 and curtailment of the right of silence in England and Wales, there is an international dimension as the author shows how the Act was to restrict the right of silence around the world.
The first part of the book explores the tensions between ideas of the right of silence and criticisms of its opponents. Chapter 1 examines the right as a potential benchmark of justice by exploring the ‘obscure’ historical origins of the right, the principles underlying its exercise and its enduring appeal. It shows that proponents of the right of silence see it as an important safeguard for the accused, mainly because of its association with the presumption of innocence, and that it is still an important, aspirational first principle for ‘new’ legal regimes. The ‘lure of expedient concessions’ (p. 3) is examined in Chapter 2, and the extent to which the right of silence has become a crime control target. The curtailment of the right to silence is portrayed as a response to terrorism and organized crime, but it was also to apply to the most trivial offences. It is enlightening for Quirk to trace the gradual erosion of the right of silence and examine this within an historical context of contemporaneous events, including the continuing ‘troubles’ in Northern Ireland, rising crime rates, industrial disputes and social unrest. It is within this context that pressure to restrict the right of silence was seen to be part of a sustained campaign led by the police as part of a backlash against the increased protections given to suspects under the Police and Criminal Evidence Act 1984 (PACE).
In the second part of the book, there is an empirically informed exploration of what the gradual limiting of the right of silence has meant in practice in England and Wales. The methodology adopted included 100 semi-structured interviews with criminal justice practitioners and 100 questionnaires completed by the police in one region outside of London. The first two empirical chapters are concerned with the right of silence as it plays out in the police station, with the effects of the CJPOA provisions considered in the context of working practices and occupational cultures of the police and defence solicitors. In Chapter 3, the right is explored in relation to the detention and interviewing of suspects. This includes examining how the police objected to increased safeguards for suspects set out in PACE, particularly the right to free and independent legal advice, with provisions in the CJPOA later seeking to curtail the right of silence. The police interview is also explored in relation to the ‘complex and coercive’ caution (p. 62), the relationship between the police and legal representatives and concerns raised by the police over ‘no comment’ interviews.
It is the effect of the CJPOA upon legal representation that Quirk notes was to shift the balance of power in custodial interrogation further in favour of the police, and the relationships between legal representatives, their clients and the police are explored in Chapter 4. In this chapter, Quirk critically examines the take-up of legal advice, outlining some of the potential obstacles that discourage suspects from accessing a solicitor, as well as considering the role of legal representatives in the police interview. The problems associated with pre-interview disclosure is seen to be a key factor undermining the right of silence, particularly with the courts’ requirement for suspects to cooperate with the police but with no reciprocal obligation on the police to disclose their case. By making custodial legal advice of potential evidential significance, because it can lead to legal representatives having to testify at the trial of their clients what advice was given during the police interview, Quirk notes how the CJPOA has compromised the lawyer–client relationship, thus ‘eroding the protective benefits of legal advice and tipping the balance even further against suspects’ (p. 119). In these two empirical chapters, Quirk shows how populist measures intended to re-balance the system away from the increased legal protections afforded by PACE, in favour of victims, was to play an important role in undermining the right of silence.
The effect of CJPOA provisions in court are examined in Chapter 5. While the legislation was to increase the number of defendants who testify, it was to have a direct effect in only a small proportion of cases. By examining sections 34 to 38 of the CJPOA, Quirk sketches out the overall developments in relation to silence in the police station and then silence at trial. She finds that ‘judicial interpretation of the law has developed a presumption that defendants should cooperate fully in the investigation and trial process, and that those who do not cooperate have something to hide’ (p. 121). The police station is now seen to be part of the trial process and that judges ‘have imported to the courtroom the traditional police suspicion of defendants and their legal representatives’ (see also Quirk, 2013: 468).
The book concludes in Chapter 6 by taking stock of the transformed landscape of the criminal trial. In particular, Quirk examines the destabilizing effects of the English debate across much of the common law world. Indeed, for Quirk, curtailment of the right of silence sent shockwaves into other jurisdictions and led to collateral damage to the lawyer–client relationship.
It is important to reflect that following the 1994 CJPOA this is the first book to provide a comprehensive, empirically informed analysis of the changing face of the right of silence in England and Wales. The findings provide an important snapshot of the working practices of, and relationships between, suspects, the police and legal representatives, which have been distorted by the CJPOA ultimately making it easier for the prosecution to discharge the burden of proof. With suspects being required to cooperate actively in the investigation and trial process, there is now an assumption of ‘coerced participation’, which runs contrary to the principle that it is for the prosecution to prove its case (Leng, 2001: 128). This change has fundamentally altered the legal landscape in ways not envisaged by those on either side of the debate at the time.
This is an important book examining the impact of provisions arising out of the CJPOA on suspects and defendants exercising their right to silence. The empirical evidence is now dated, having been gathered in 1999. It is unfortunate that the author was not successful in her attempts to obtain permission from the police or Crown Prosecution Service to conduct a follow-up study, particularly as much has changed over recent years that could have implications for the further erosion of this fundamental principle—including, for instance, the increasing dominance of managerialism throughout the criminal justice system. Other developments include a police target that had been used to help increase the number of detections and this was to put the police under tremendous pressure to get an admission in the interview so that a sanction detection could be recorded. There are incentives for defendants to cooperate in court, including the offer of a sentence reduction to those who plead guilty the first time they enter a plea. In these times of austerity, cost-cutting measures are also likely to have influenced changes in working practices and occupational cultures of the police and defence solicitors that could have implications for the right of silence. This book highlights the importance of empirical research helping to identify some of the intended and unintended consequences of legislation designed to curtail the right of silence. Quirk has set out a comprehensive analysis of factors influencing the right over recent years and it is to be hoped that this will encourage scholars to examine this important topic.