Self-Incrimination, The Right to Silence, and the Reverse Burden of Proof

Abstract

Abstract The privilege against self-incrimination, the right to silence, and the presumption of innocence are closely linked common-law rights. However, they have been subject to progressive statutory erosion by, respectively, compelled evidence, adverse inferences, and the reverse burden of proof. The right not to incriminate oneself and the right to silence are concepts which are inextricably bound together, though in the context of Convention jurisprudence they may be distinguished. The former is associated with protection against the coercive power of the state to compel a person, on threat of punishment, to provide information or evidence or to deliver up documents. Evidence obtained in that way is referred to as ‘compelled evidence’. The right to silence is considered in the context of the evidential use of silence in the face of questioning as proof of guilt: the adverse inference. The presumption of innocence may be compromised by the reversal of the burden of proof by which a defendant is required to establish the absence of an element of an offence or a defence to the charge.