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The Right to Silence

Comment 13th July 2010

The Government should seriously consider the position of section 34-36 of the Criminal Justice and Public Order Act 1994 and the fundamental right of the accused to remain silent.

A corner stone of the English legal system is that the prosecution bears the burden of proving a defendant's guilt, it has been describes as the "golden thread" running through the law of the land, not the defendant establishing his innocence. The principle therefore is simple: the prosecution must prove the defendant's guilt. Despite this fundamental principle numerous governments have eroded this right and place positive obligations on an accused to speak, rather than relying on the prosecution to establish quilt.

 

If Nick Clegg is serious about civil liberties, which I doubt, he would reverse the burden place on the defendant and revert back to the prosecution whereby the prosecution proves guilt beyond reasonable doubt. 

Why does this matter?

Under article 6 of the European Convention of Human Rights and according to the common law principle of hebeas corpus an individual is considered innocent until his guilt had been proven beyond reasonable doubt. The prosecution should bear the burden of proving guilt, not the defendant proving his innocence.

Removal of adverse inferences from silence would take the law back to it's rightful position: the prosecution bearing the burden of proving the defendant's guilt, not the defendant establishing his innocence.

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