On the Complete Realization of the Right to Silence in China from the Perspective of the Role Change of the Accused

2021 ◽  
Vol 7 (5) ◽  
pp. 3636-3642
Author(s):  
Hui Qiang
Keyword(s):  
Role Conflict ◽  
Role Overload ◽  
Criminal Proceedings ◽  
Extreme Situation ◽  
Role Change ◽  
Right To Silence ◽  
Zhou Dynasty ◽  
The Right

Since the Zhou Dynasty, China has a tradition of “emphasizing confession”. Until now, “confession centrism” is still a deep-rooted judicial concept in the minds of judicial personnel. This leads to the repeated prohibition of extorting confessions by torture in our country, and eventually leads to many unjust and false cases. The long-term judicial tradition from “no confession without conviction” to “Leniency for confession and strictness for resistance” has made the accused bear different functions according to their different status in various stages of criminal proceedings, which makes the role overload, role conflict and role tension of the ordinary criminal accused more prominent, and even lead to the extreme situation of role collapse. To give the defendant an opportunity to change his identity may help us to find a solution to the complete realization of the right to silence and the protection of the right to abstain.

Silence with caution: The right to silence in police investigations in Belgium

2021 ◽  
pp. 203228442110283
Author(s):  
Ashlee Beazley ◽  
Fien Gilleir ◽  
Michele Panzavolta ◽  
Joëlle Rozie ◽  
Miet Vanderhallen
Keyword(s):  
Case Law ◽  
Public Prosecutor ◽  
Criminal Proceedings ◽  
The Public ◽  
Digital Devices ◽  
Police Investigations ◽  
Right To Silence ◽  
Right To Information ◽  
Definition Of ◽  
The Right

This article is about the right to remain silent within Belgium. Although the right has always been considered applicable, both the courts and parliament have historically demonstrated a disinclination to define or engage with this. The right to silence is now formally recognised in the Belgian Code of Criminal Procedure, albeit with the classic distinction between those who are not (yet) accused of a crime and those who are formal suspects: while all enjoy the right not to incriminate themselves, only formal suspects in Belgium enjoy the explicit right to remain silent. Accordingly, whilst no one may be obliged to assist with their own conviction or be forced to co-operate with the authorities, it remains unclear how far the right not to cooperate effectively stretches. The case law seems to be moving, albeit slowly, in the direction of confining this right within narrower borders, particularly by excluding its applicability with regard to the unlocking and decryption of digital devices. This is not, however, the only idiosyncrasy concerning the right to silence in Belgium. Among those also addressed in this article are: the lack of caution on the right to remain silent given to arrested persons immediately following their deprivation of liberty (an absence striking for its apparent breach of Directive 2012/13/EU on the right to information in criminal proceedings); the possible inducement to breach the right to silence via the discretionary powers of the public prosecutor to offer a reduction or mitigation in sentence; the obscurity surrounding the definition of ‘interrogation’ and the consequences of this on both the caution and the obtaining of statements; and the extent to which judges can draw adverse inferences from the right to silence. The question remains: is the right to silence currently protected enough?

scholarly journals Ireland: Curtailment of the right to silence through statutory adverse inferences

2021 ◽  
pp. 203228442110283
Author(s):  
Yvonne M. Daly
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Presumption Of Innocence ◽  
Legal Assistance ◽  
Criminal Proceedings ◽  
European Court ◽  
Right To Silence ◽  
The Right ◽  
Right Of Access ◽  
Police Questioning

In Ireland, the right to silence has been significantly impacted by the legislative introduction of adverse inference provisions. In specified circumstances, with varying threshold requirements, a suspect’s failure to answer questions or provide information during Garda (police) questioning can form the basis of an inference against them at trial. Ireland has not opted in to either Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence or Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. This article examines the constitutional and common law context of the protection of the right to silence in Ireland; the operation, and expansion, of the statutory inference regime; the lack of legislative provision for a right to legal assistance during Garda interview; and relevant European Court of Human Rights jurisprudence. While there are some benefits to overt legislation and safeguards attached to the drawing of inferences from pre-trial silence, the question must be asked whether a detained suspect in Ireland truly has a protected right to silence in real terms, given the proliferation of inference provisions.

scholarly journals Common Sense or Unnecessary Complexity? The Recent Change to the Right to Silence in New South Wales

2014 ◽  
Vol 19 (2) ◽  
pp. 311
Author(s):  
Ashley Cameron
Keyword(s):  
Common Sense ◽  
New South ◽  
New South Wales ◽  
Recent Change ◽  
Close Monitoring ◽  
Criminal Proceedings ◽  
The United Kingdom ◽  
South Wales ◽  
Right To Silence ◽  
The Right

The New South Wales government has now enacted section 89A of the Evidence Act 1995 (NSW), which will significantly amend the right to silence. The new provision allows courts in certain circumstances to draw unfavourable inferences from evidence of silence in criminal proceedings. Parliament has justified the legislation as a ‘common sense’ approach, intended to prevent offenders hiding behind a wall of silence. However the benefits of the legislation are expected to be minimal at best. Although critics have already put forward weighty theoretical arguments opposing the enactment of the new provision, how it will operate in New South Wales courts remains to be seen. This article will undertake a detailed comparative analysis, examining the operation of similar legislation in the United Kingdom to determine how section 89A might be interpreted and applied in New South Wales. This analysis suggests that the need for extensive and complicated jury directions, the problems in determining whether the provision is to be invoked at all, and the complex test used in deciding whether it was reasonable for the accused to remain silent, will create significant difficulties in the application of section 89A. It is contended that the number and seriousness of these difficulties, coupled with the only limited benefit (if any) to be derived from the section, justify the close monitoring of section 89A and its review at an appropriate time.

10. Privilege and public policy

2016 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Public Policy ◽  
Public Interest ◽  
Common Law ◽  
European Convention ◽  
Criminal Proceedings ◽  
Right To Silence ◽  
Questions And Answers ◽  
Flow Charts ◽  
Legal Professional ◽  
The Right

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter covers evidence excluded for policy or public interest considerations: public interest immunity (PII). A party, witness or non-participant in proceedings may refuse to disclose information, papers or answer questions, even though such material may be highly relevant and reliable. If PII applies, neither party has access to the evidence. For privilege, the areas most likely to occur in Evidence courses are privilege against self-incrimination and legal professional privilege. The former includes the right to silence of the defendant. The privilege against self-incrimination is generally upheld by common law and by implication by Art. 6 of the European Convention on Human Rights (ECHR). Legal professional privilege is a common law exclusionary rule principle that applies in civil and criminal proceedings.

scholarly journals Strengthening the protection of the right to remain silent at the investigative stage: What role for the EU legislator?

2021 ◽  
pp. 203228442110283
Author(s):  
Anna Pivaty ◽  
Ashlee Beazley ◽  
Yvonne M Daly ◽  
Dorris de Vocht ◽  
Peggy ter Vrugt
Keyword(s):  
The European Union ◽  
Criminal Proceedings ◽  
Eu Member States ◽  
Existing Problems ◽  
Legal Provisions ◽  
Right To Silence ◽  
The Right ◽  
Procedural Rights ◽  
The Eu

This article reflects on the possible contribution of the European Union towards safeguarding the right to silence at the investigative stage of criminal proceedings in EU Member States. The analysis is not limited to the Directive 2016/343/EU and other procedural rights’ Directives. Rather, it focuses on the role of the EU as a legal and political player, pursuing the goal of enhanced protection of procedural rights in criminal proceedings. The article first examines compliance of the legal provisions of the four examined jurisdictions with the Directive. It then identifies the relevant areas, not addressed or insufficiently addressed in the existing EU instruments, which appear problematic as far as the effectuation of the right to silence is concerned. The article argues that a more detailed binding EU regulation is not an appropriate solution to address the existing problems. Instead, it suggests that the EU legislator should consider other, more indirect means of action.

10. Privilege and public policy

2018 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Public Policy ◽  
Public Interest ◽  
Common Law ◽  
European Convention ◽  
Criminal Proceedings ◽  
Right To Silence ◽  
Questions And Answers ◽  
Flow Charts ◽  
Legal Professional ◽  
The Right

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter covers evidence excluded for policy or public interest considerations: public interest immunity (PII). A party, witness or non-participant in proceedings may refuse to disclose information, papers or answer questions, even though such material may be highly relevant and reliable. If PII applies, neither party has access to the evidence. For privilege, the areas most likely to occur in Evidence courses are privilege against self-incrimination and legal professional privilege. The former includes the right to silence of the defendant. The privilege against self-incrimination is generally upheld by common law and by implication by Art. 6 of the European Convention on Human Rights (ECHR). Legal professional privilege is a common law exclusionary rule principle that applies in civil and criminal proceedings.

scholarly journals Some theoretical problems on the right to silence in criminal procedure summary

2016 ◽  
Vol 19 (3) ◽  
pp. 86-95
Author(s):  
Tai Van Vo ◽  
Anh Tuan Trinh
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Human Beings ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Right To Silence ◽  
Long Time ◽  
The Right

Right to silence is a fundamental right of human beings in criminal proceedings and one of the most important measures to protect human rights in society. The right to remain silent had been prescribed for a long time in the Criminal Procedure Code of many countries and proved to be effective in ensuring the rights of persons in custody, accused or defendants in criminal proceedings. However, there has been plenty of opinions on the right to silence in Vietnam. Some support the legalization, some oppose while some other are worried about implementation difficulties. Perhaps this is because the connotation of the right to silence is not fully understood. This paper analyzes the origin and nature of the right to silence, thereby providing a more accurate view on the connotation of the right to silence.

scholarly journals Opening Pandora’s box: The right to silence in police interrogations and the Directive 2016/343/EU

2021 ◽  
pp. 203228442110283
Author(s):  
Anna Pivaty ◽  
Ashlee Beazly ◽  
Yvonne M Daly ◽  
Laura Beckers ◽  
Dorris de Vocht ◽  
...  
Keyword(s):  
Case Law ◽  
Criminal Proceedings ◽  
Right To Silence ◽  
Police Interrogations ◽  
The Right

This article examines the provisions of the Directive 2016/343 related to the right to remain silent with special emphasis on pre-trial proceedings and police interrogations. It focuses on the inherent contradictions and unclarities of the respective provisions, particularly when interpreted in light of the respective ECtHR case law. The article also identifies areas, relevant to regulation of suspect interrogations and the right to silence, which are not addressed in the Directive or the ECtHR jurisprudence. It concludes by critically assessing the likely effectiveness of the Directive provisions in ensuring the right to silence in criminal proceedings.

scholarly journals The Right to Silence in the EU Directive 2016/343 on the Strengthening of Certain Aspects of the Presumption of Innocence from the Perspective of Polish Criminal Proceedings

2020 ◽  
Vol 41 (2) ◽  
pp. 55-80
Author(s):  
Andrzej Sakowicz
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
Core Component ◽  
Eu Directive ◽  
Right To Silence ◽  
The Right ◽  
The Eu

The right to remain silent is one of the most fundamental principles of domestic and international criminal law. It’s is also closely related to the presumption of innocence. As the responsibility is placed on the prosecution to prove the guilt of a person it follows that the accused should not be forced to assist the prosecution by being forced to speak. The right to remain silent expresses the individual’s right not to be compelled to testify against himself or to confess guilt. Its core component is the freedom to choose whether or not  to give answers to individual questions or to provide explanations. To use against the suspected silence under police questioning and his refusal to testify during trial amounted to subverting the presumption of innocence and the onus of proof resulting from that presumption: it is for the prosecution to prove the accused’s guilt without any assistance from the latter being required. This article has to objectives. Firstly, to interpret the right to remain silent in the light to of the Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceeding. Secondly, the  Directive 2016/343 can be used as reference to evaluate a degree to which Polish legal solutions conform to the Directive in question, giving rise to several postulates  in  that  matter. The analysis will also include shortages and problems resulting from imperfect Polish criminal process in that field.

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