The right to silence: Inferences and interference

Abstract

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.