Reforming Confession Law British Style: A Decade of Experience With Adverse Inferences from Silence

In response to problems encountered in the administration of justice in Northern Ireland, the British government issued the Criminal Evidence (Northern Ireland) Order 1988 changing the character of how the right to silence and privilege against self-incrimination would apply in criminal justice proceedings occurring within Northern Ireland. In general terms, the Order provided that suspects under interrogation and criminal defendants at trial would be subject to adverse inferences if they failed to answer police questions or refused to testify in court. The Order included some qualifications on when and how adverse inferences would be used, and provided that such use would not be permitted unless an appropriate warning was administered in advance. In 1994 the Criminal Justice and Public Order Act extended this system to England and Wales. In the years following issuance of the Order and passage of the subsequent legislation, British courts and the European Court of Human Rights have upheld the legitimacy of the revised right to silence system while clarifying some of its specific provisions. In addition, research efforts have been undertaken to assess the impact of the Order and legislation on the circumstances and frequency of assertions of the right to silence. This article reviews how court decisions have dealt with the Order and legislation as well as how the new approach to the right to silence has affected the administration of criminal justice over the course of the first decade of the new system