The right to silence and the privilege against self-incrimination: a critical examination of a doctrine in search of cogent reasons

Abstract

The aim of this thesis is to analyse the silence principle (i.e. the right to silence and the

privilege against self-incrimination) and to determine its place within procedural and constitutional law. Should the silence principle be entirely abolished, sustained as a limited evidentiary rule or elevated to the status of a constitutional right? The central question to be argued is whether the silence principle has a rationally justifiable and valid procedural place within the accusatorial-adversarial Anglo-American system of criminal justice.

The methodology employed in the main body of this thesis involves a critical and comparative examination of the silence principle and is founded on the following four legs :

a) A historical analysis of the silence principle and its antecedents. Does the historical silence principle support the modern silence principle in description and scope? b) An analysis of the distinction between a "right" and a "privilege". Why is the accused's right to silence distinguished from the witness privilege? Is there a philosophical justification for the silence principle? c) A comparative study of the two major jurisdictions of the Anglo-American

system of justice, namely :

i) The American silence principle constituted as the fifth amendment privilege against self-incrimination and entrenched within the U.S. Constitution; ii) The English silence principle constituted until recently as a common law evidentiary rule contained within a body of ill-defined principles loosely referred to as the unwritten English Constitution. The common law rule has been statutorily formalized in the Criminal Justice and Public Order Act 1994 and will be greatly influenced by the new Human Rights Act 1998.

iii) The South African interpretation of a silence principle is caught between the two extremes of an American absolute right and an English evidentiary rule. Silence in South Africa is a relative right subject to a balance of interest and reasonable limitation. Which of these definitions is better suited as a template for an ideal silence principle?

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d) A comparative international study of the procedural differences between an inquisitorial and an accusatorial system. How does a principle of silence function outside the accusatorial system?

The conclusion of the thesis is that the most suitable role of a silence principle within the accusatorial system is one of a flexible compromise. While it does not deserve abolition neither does it deserve elevation into a constitutional right. Silence is best suited to the role of a procedural evidentiary rule. A circumstantial item of evidence with its trial admissibility determined by the criteria of relevancy and prejudice. If the legal, political and cultural pressures upon a particular jurisdiction are such as to demand constitutional entrenchment then the second best alternative is to define the silence principle as a relative right susceptible to a properly applied balance of interest test. The worst alternative is to define the silence principle in absolute terms. Silence as an evidentiary rule or a relative right means that it will sometimes be necessary to emphasise the autonomous interests of the individual in remaining silent and at other times the societal interest in crime prevention. Which interest is to be preferred and to what extent will depend on the prevailing social pressures of the day. It shall be argued that the elevation of a silence principle into a constitutional right stifles a critical examination of the essentiale of silence by disguising its inherent irrationality and lack of a philosophical raison de etre.

The interpretation of a silence principle as an absolute constitutional right by the Supreme Court of the United States is confusing, contradictory and riddled with innumerable exceptions. By contrast the English approach to silence is pragmatic and highly successful. The Criminal Justice and Public Order Act of 1994 gives a meaningful interpretation of silence which takes into account its logical flaws. The English statute is a successful compromise between the need to protect the individual during the criminal process and the need to combating crime in the most efficient manner possible. While the South African interpretation of silence is a workable compromise, South Africa may have been better served by defining its silence principle in terms of the pragmatic English statutory model which allows for the efficient but carefully controlled use of silence in the combating of crime.