The Right to Silence, Defence Disclosure, and Confession Evidence

Abstract

The Runciman Commission has been widely, and rightly, criticized for its failure to address basic matters of purpose and principle at the heart of the criminal justice system and for having instead adopted a 'managerial' or 'liberal bureaucratic' approach incapable of generating the kind of comprehensive review which was required.' While it cannot seriously be denied that efficiency and the reduction of costs are legitimate matters of concern, the central problem lies in the absence of a general framework of priorities which would allow these issues to be considered in relation to other goals on a systematic rather than an ad hoc basis.2 Although various kinds of economies could undoubtedly be made, one basic principle amongst others, must remain sacrosanct: no proposed reduction in expenditure can be justified if it jeopardizes the absolute right of the innocent to avoid conviction. Had this test been applied, the overall structure of the report, and a number of its key recommendations, would have been different. However it would be misleading to claim that the Commission makes no reference to basic criminal justice values. At more than one point the report states that the prosecution's burden of proving guilt beyond reasonable doubt is 'fundamental'.3 Although recognition of this principle is undoubtedly meritorious, the manner in which its implications have been teased out is problematic, not least with respect to some of the issues with which this article will be concerned. The right to silence, advance disclosure of the defence case, and confession evidence have an intimate interrelationship. Although advance disclosure of the prosecution case is closely related to these matters, it also raises a variety of other issues and is, therefore, discussed elsewhere in this collection of essays. At essence, a suspect's right to silence is the right to avoid being drawn into making damaging and possibly false admissions in police custody or in court without this being the subject of adverse comment at trial, while requiring advance