The Pros and Cons of the Right to Silence

‘You do not have to say or do anything but anything you say or do may be used in evidence’ – A typical police caution given before interview. The right to silence is often said more accurately to be the ‘bundle of rights’ available to a person being questioned or prosecuted for an alleged crime.This ‘bundle’ includes a requirement that individuals may not be compelled or induced to answer questions put to them by law enforcement agents. It is an entitlement recognised both in Australian and International law. The right is an essential component of a fair trial, recognised in Article 14(3)(g) of the International Covenant on Civil and Political Rights, which states that
a person should ‘not to be compelled to testify against himself or to confess guilt.’ Although a person may, in fact, be compelled to answer questions, the courts give effect to the ‘right’ by rejecting from the trial evidence that has been obtained improperly or unlawfully. Similarly, the law
also provides that a jury may not draw inferences of guilt from mere silence. 2 The right means that persons under investigation need not answer questions (unless they want to); or that their failure to cooperate should not form the basis of a conclusion of guilt.