Home > Publications and Reports > Jackson on the Right to Silence

Jackson on the Right to Silence

johnMy colleague and the Dean here in UCD School of LawProf. John Jackson, has just published “Re-Conceptualizing the Right of Silence as an Effective Fair Trial Standard” in the latest issue of the International and Comparative Law Quarterly. Here is the abstract:

As the European Court of Human Rights has come to qualify the privilege against self-incrimination and the right of silence in recent decisions, this article argues that the Court has failed to provide a convincing rationale for these rights. It is claimed that within the criminal process the right of silence should be distinguished from the privilege against self incrimination and given enhanced effect in order to uphold the protective and participatory rights of the defence which come into play when a suspect is called upon to answer criminal allegations.

In the body of the article John rightly notes that as the right to silence and the right against self-incrimination come under increasing attack—including by means of limitations arising from the jurisprudence of the European Court of Human Rights itself—the need to theorise a rationale for these rights increases in importance. While John accepts that there may be cases where these rights can be excepted from for pressing reasons of public interest, “it is not enough in these situations, arguably, just to claim that the right to silence can be ‘balanced away’ by a general public interest” (p.p. 850-851). John argues for a weighted right to silence—the idea that there is such a right until there is an evidence-based allegation that requires an answer, at which point, suspects should “be given an opportunity to respond under conditions that allow for informed and fair participation” (p. 852). At that point, the article argues, proceedings have effectively begun against suspects and those suspects should, therefore, enjoy full fair trial protections from that moment onwards.

This argument requires a separation of the right to silence and the right against self-incrimination and presents a very interesting and novel approach to the matter. To borrow a phrase from Lawrence Solum, it is ‘highly recommended’!

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