“A case is not decided on the mere silence of an accused

who takes the gamble to remain silent in the hope of getting away”

Qs & As
Right to remain silent. Pic – Dreamstime.com

‘Don’t Talk to The Police’

* ‘An accused has the right to remain silent as it is for the prosecution to prove the case against him’

By Lex

Followers of US matters would be familiar with the expression “I plead the fifth” meaning the fifth amendment to the US constitution allowing any citizen to remain silent under questioning by police. Here too that right to remain silent under questioning is enshrined in our Constitution and is absolute. However, says Lex, a case is not always determined by the silence of an accused but on evidence presented and the courts may draw their own inferences from the silence of the accused person.

 * Three provisional charges relating to criminal defamation, diffusing false news, and breach of the Information and Communication Technologies Act have been pressed against the ex-CEO of Mauritius Telecom (MT), following the case lodged by the Prime Minister. Mr Sherry Singh is being interrogated by the Central CID in that connection, and he has apparently chosen to remain silent to certain questions put to him by the police. What is the meaning of ‘you have the right to remain silent’, and is this a constitutional right?

When a person is arrested on suspicion of having committed an offence, he has to be informed of the charge and told that he has the right to be assisted by a lawyer. The most important aspect of the procedure when the police want to question him is that he must be told that he has the right to remain silent or talk. It is a constitutional right on account of the concept of the presumption of innocence which means than an accused has the right to remain silent as it is for the prosecution to prove the case against him.

 * What’s the reasoning behind this constitutional right?

The reasoning is that it is for the State to prove the elements of an offence against an accused. This is so because the State has an armada of means to investigate and gather evidence. The burden is on the prosecution to prove the case against the accused party. If the burden were on the accused, it would be most difficult if not impossible for him to gather evidence to establish his innocence.

* Is the right to remain silent extremely important to use when you are detained, arrested, and interrogated?

Yes and no. A suspect has the absolute right to remain silent. However, if this right is also exercised during trial, a judge or magistrate would have the right to take that into consideration when determining the case against the accused.

* What happens if a suspect invokes his right to remain silent? Does it put an end to all police questioning?

Yes. The police will record that fact in a statement and will inform the court in an eventual trial. 

* Can silence be incriminating for a suspect and be used against her/him as evidence of guilt?

According to the case law on the matter, the right of an accused party to silence is enshrined in section 10(7) of our Constitution and is certainly to be respected but one must be careful not to read too much into it. The courts have made clear that this right does not carry with it a right not to have reasonable inferences drawn from such silence and it is exercised at the accused party’s risk and peril when, at the close of the case for the prosecution, a prima facie case has been clearly established

 * How long can a suspect remain silent? Are their limits to that right?

No, there are no limits subject to the risk of having a court drawing inferences that may go against the accused.

* A person that is arrested for any reason must be brought before a magistrate or judge within a prescribed timeframe at the very latest. Would it still be advisable for that person to invoke his right to remain silent thereafter in case he is maintained in police custody?

That an arrested person must be taken to court within reasonable time following his arrest is enshrined in our Constitution. Taking a person to court following his arrest has nothing to do with the right to silence. Both principles are independent of each other. Whereas the police have an obligation to take a person to court following his arrest, the arrested person is not obliged to talk and may decide to keep silent.

* Can the same right be invoked during trial?

In a court of law, after the prosecution have closed their case, the accused has three options. He may decide to keep completely silent. Or he may make a statement from the dock. Or he may decide to give evidence as a witness under oath or solemn affirmation and be subjected to cross examination. It should be noted that the statement an accused makes from the dock does not have much evidential value though the court has to consider it.

* Are there exceptions to a suspect’s right to remain silent, for example in cases involving state security, the fight against drug trafficking or against terrorism?

There are no exceptions. It an absolute right. As far as terrorism is concerned, we know how suspects were tortured at the Guantanamo Bay detention camp to extract confessions from them. Recently in Mauritius we have seen cases of police brutality amounting to torture with the sole aim of extracting confessions.

* A suspect who remains silent may be believed to be guilty, but does that right to remain silent be considered as one of the most important safeguards protecting citizens against arbitrary actions of the state?

As stated earlier, an accused takes a risk by remaining silent but this is his absolute right.

* Are there indications that would suggest that those who have chosen to invoke their right to silence have improved their chances of getting cleared of any criminal offence?

A case is not decided on the mere silence of an accused who takes the gamble to remain silent in the hope of getting away. A case is decided on the evidence presented in court.

* The last word should perhaps go to law professor James Duane of the Regent University School of Law, Virginia, USA, who in 2016 brought out a book with the title ‘You Have the Right to Remain Innocent’, and thereafter followed it up with a lecture (together with Officer George Bruch from the Virginia Beach police department) on ‘Don’t Talk to the Police’. That seems to be the best option, right?

It may be the best solution, but that does not preclude the court from drawing inferences adverse to the accused.

Mauritius Times ePaper Friday 22 July 2022

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