The right to silence: Inferences and interference

The right to silence, or the privilege against self-incrimination, has long been recognised as an important procedural protection for the accused in the criminal process. The legislature of New South Wales, however, has introduced legislation to curtail that right by allowing for adverse inferences to be drawn at trial from the pre-trial failure of the accused to mention a fact later relied on in his defence. This article considers this legislative change in comparative context, drawing on the experience of interference with the right to silence in the Republic of Ireland, in England and Wales and in the judgments of the European Court of Human Rights. Particular attention is paid to the interaction between the right to silence and the right to legal advice, including the issues of duty solicitor schemes, legal professional privilege and suspect reliance on advice to remain silent.

Journal/Publisher: Australian & New Zealand Journal of Criminology, Volume 47, Issue 1

Publication type: Article

Number of pages/Page range: 59-80

Language/s (content): English

Date of publication: 01-04-14

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Personal data

Full name Yvonne Marie DALY

Current occupation Member

University/Institution Dublin City University

Address Glasnevin

Postal code Dublin 9

Telephone 00353 1700 5000

Email yvonne.daly@dcu.ie