The right to silence in England and Wales is the protection given to a person during criminal proceedings from adverse consequences of remaining silent.
Prior to 1912, while torture had been banned, the mistreatment of silent suspects to induce a confession was common and the refusal to answer questions was used as evidence against them.
When, during his trial for murder, Dr John Bodkin Adams decided, on the advice of his lawyer, not to give evidence, the prosecution, the gallery and even the judge, Baron Devlin, were surprised.
However the rights were already well established by case law as was the necessity of no adverse comments, the principle being that the defendant does not have to prove his innocence – the burden of proof rests on the prosecution.
Anything you do say may be given in evidence.In some circumstances, particularly if a suspect has requested legal advice but has not been allowed the opportunity to consult a solicitor, no adverse inferences may be drawn.
The supporters of the proposed Act argued that the existing law was being exploited by "professional" criminals, while innocent people would rarely exercise their right.
[citation needed] A defendant in a criminal trial has no obligation to answer any questions, but may choose whether or not to give evidence in the proceedings.
[6] At common law, adverse inferences could be drawn from silence only in limited circumstances in which an accusation of guilt was made.
The Criminal Justice and Public Order Act 1994 provides statutory rules under which adverse inferences may be drawn from silence.
[10] If a defendant states that he remained silent on legal advice, the question for the jury is whether silence can only be attributed to the accused having no satisfactory answer to the charge against him.
The Judicial Studies Board have provided a specimen direction,[14] which has been accepted by the European Court of Human Rights.