The Muddle of Silence

This article looks at the status and application of the right to remain silent in a number of common law jurisdictions. It explores the multiple rationales said to underlie the right to remain silent and concludes that there is only one that withstands scrutiny, namely, that the right to remain silent assists in preventing the abuse of public power. As such the right is instrumental in nature and infringements of the right need to be assessed against this rationale. Accordingly, if appropriate safeguards are in place minor encroachments such as the drawing of adverse inferences from silence should not create undue concern. However, given both the normative and instrumental value of the right to remain silent, it would be foolish to undermine the right in the absence of clear utilitarian gains for doing so and infringements should never be viewed as justified in the absence of appropriate safeguards against the abuse of public power.