The right to silence: using American and European law to protect a fundamental right

Article

Gray, Anthony. 2013. "The right to silence: using American and European law to protect a fundamental right." New Criminal Law Review: an international and interdisciplinary journal. 16 (4), pp. 527-567. https://doi.org/10.1525/NCLR.2013.0038
Article Title

The right to silence: using American and European law to protect a fundamental right

ERA Journal ID33647
Article CategoryArticle
Authors
AuthorGray, Anthony
Journal TitleNew Criminal Law Review: an international and interdisciplinary journal
Journal Citation16 (4), pp. 527-567
Number of Pages41
Year2013
PublisherUniversity of California Press
Place of PublicationBerkeley, CA. United States
ISSN1093-3514
1933-4192
1933-4206
Digital Object Identifier (DOI)https://doi.org/10.1525/NCLR.2013.0038
Web Address (URL)http://www.jstor.org/stable/10.1525/NCLR.2013.0038
Abstract

This article considers how fundamental rights such as the right to silence can be protected in countries without a formal bill of rights. Using Australia as an example of such a country, the article traces a brief history of the right, before pointing out how the Australian case law has allowed legislatures to depart from it, using specific examples. It summarises the extent to which such a right is protected in North American and European law, before considering how such jurisprudence might be applied in Australia and elsewhere to ensure the hard-fought right to silence is preserved.

Keywordsright to silence; Fifth Amendment; privilege against self-incrimination; evidence; fair trial; due process
ANZSRC Field of Research 2020489999. Other law and legal studies not elsewhere classified
480410. Legal theory, jurisprudence and legal interpretation
500202. History and philosophy of law and justice
Public Notes

© 2013 The Regents of the University of California.
Paper must carry the following information: Published as [provide complete bibliographic citation, as appears in the print version of your journal].

Byline AffiliationsSchool of Law
Institution of OriginUniversity of Southern Queensland
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Gray, Anthony. 2007. "Alert and alarmed: the National Security Information Act (Cth) 2004." University of Tasmania Law Review. 24 (2), pp. 1-23.
Mockery and the right to trial by jury
Gray, Anthony. 2006. "Mockery and the right to trial by jury." QUT Law Review. 6 (1), pp. 66-88.
Queensland criminal law may be unconstitutional
Gray, Anthony. 2004. "Queensland criminal law may be unconstitutional." Queensland Lawyer. 25, pp. 75-85.
A head for business regulation: the corporations power and the federal government's workplace relations reforms
Gray, Anthony. 2006. "A head for business regulation: the corporations power and the federal government's workplace relations reforms." Commercial Law Journal. 1 (1), pp. 56-67.
High court validates federal government's IR reforms
Gray, Anthony. 2006. "High court validates federal government's IR reforms." Commercial Law Journal. 1 (3), pp. 15-23.
High court validates restrictions on lawyer advertising
Gray, Anthony. 2005. "High court validates restrictions on lawyer advertising." Queensland Lawyer. 26 (3), pp. 131-139.
Applying provisions of the Australian Constitution to protect rights from intrusion by state parliaments
Gray, Anthony. 2011. "Applying provisions of the Australian Constitution to protect rights from intrusion by state parliaments." Australian Journal of Administrative Law. 18 (4), pp. 229-244.
Religious freedom and Section 116 of the Australian Constitution: would a banning of the hijab or burqa be constitutionally valid?
Gray, Anthony. 2011. "Religious freedom and Section 116 of the Australian Constitution: would a banning of the hijab or burqa be constitutionally valid?" Forum on Public Policy: a journal of the Oxford Round Table. 2011 (2), pp. 1-33.
Police power to conduct a search without reasonable suspicion in Australia: a comparative perspective
Gray, Anthony. 2011. "Police power to conduct a search without reasonable suspicion in Australia: a comparative perspective." European Public Law. 17 (2), pp. 331-347.
Why vicarious liability must be abandoned
Gray, Anthony. 2011. "Why vicarious liability must be abandoned." Australian Business Law Review. 39 (2), pp. 67-84.
The rule of law and reasonable suspicion
Gray, Anthony. 2011. "The rule of law and reasonable suspicion." Australian Journal of Human Rights. 16 (2), pp. 53-79.
Enforcement of punitive damages awards in the convention on choice of court agreements
Gray, Anthony. 2009. "Enforcement of punitive damages awards in the convention on choice of court agreements." Willamette Journal of International Law and Dispute Resolution. 17 (1), pp. 105-156.
Federal spending power in three federations: Australia, Canada and the United States
Gray, Anthony. 2011. "Federal spending power in three federations: Australia, Canada and the United States." Common Law World Review. 40 (1), pp. 13-39. https://doi.org/10.1350/clwr.2011.40.1.0215
Immunity of the Crown from statute and suit
Gray, Anthony. 2010. "Immunity of the Crown from statute and suit." Canberra Law Review. 2010 (1), pp. 1-35.
The constitutionality of criminal organisation legislation
Gray, Anthony. 2010. "The constitutionality of criminal organisation legislation." Australian Journal of Administrative Law. 17 (4), pp. 213-228.
Sustainable juries: thinking outside peer criminal jury trials
Gray, Anthony and Barnett, Eola. 2010. "Sustainable juries: thinking outside peer criminal jury trials." Journal of Judicial Administration. 20 (1), pp. 18-38.
The common law and the Constitution as protectors of rights in Australia
Gray, Anthony. 2010. "The common law and the Constitution as protectors of rights in Australia." Common Law World Review. 39 (2), pp. 119-156.
Unfair contracts and the Consumer Law Bill
Gray, Anthony. 2009. "Unfair contracts and the Consumer Law Bill." QUT Law Review. 9 (2), pp. 155-175.
Provocation and the homosexual advance defense in Australia and the United States: law out of step with community values
Gray, Anthony. 2010. "Provocation and the homosexual advance defense in Australia and the United States: law out of step with community values." The Crit. 3 (1), pp. 53-72.
Forum non conveniens in Australia: a comparative analysis
Gray, Anthony. 2009. "Forum non conveniens in Australia: a comparative analysis." Common Law World Review. 38 (3), pp. 207-244.
Extending time limits in sexual abuse cases
Gray, Anthony. 2009. "Extending time limits in sexual abuse cases." Common Law World Review. 38 (4), pp. 342-384. https://doi.org/10.1350/clwr.2009.38.4.0199
Reform of rules of private international law in Manitoba: a comparative perspective
Gray, Anthony. 2009. "Reform of rules of private international law in Manitoba: a comparative perspective." Journal of Politics and Law. 2 (4), pp. 26-38.
A guaranteed right to trial by jury at state level?
Gray, Anthony. 2009. "A guaranteed right to trial by jury at state level?" Australian Journal of Human Rights. 15 (1), pp. 97-125.
State-based business licensing in Australia: the Constitution, economics and international perspectives
Gray, Anthony. 2009. "State-based business licensing in Australia: the Constitution, economics and international perspectives." Deakin Law Review. 14 (2), pp. 165-188.
Due process, natural justice, Kable and organisational control legislation
Gray, Anthony. 2009. "Due process, natural justice, Kable and organisational control legislation." Public Law Review. 20 (4), pp. 290-305.
To give and to receive: the Australian government's proposed electoral finance reforms
Gray, Anthony and Jones, Nicky. 2010. "To give and to receive: the Australian government's proposed electoral finance reforms." University of Tasmania Law Review. 28 (2), pp. 182-209.
Australian 'bikie' laws in the absence of an express Bill of Rights
Gray, Anthony. 2009. "Australian 'bikie' laws in the absence of an express Bill of Rights." Journal of International Commercial Law and Technology. 4 (4), pp. 274-286.
Options for the doctrine of Crown immunity in 21st century Australia
Gray, Anthony. 2009. "Options for the doctrine of Crown immunity in 21st century Australia." Australian Journal of Administrative Law. 16 (4), pp. 200-210.
Excise taxation in the Australian federation: a legal and economic perspective
Gray, Anthony. 2009. Excise taxation in the Australian federation: a legal and economic perspective. Berlin, Germany. VDM Verlag Dr. Muller.
Human rights in Australia: looking forward, looking back
Gray, Anthony. 2009. Human rights in Australia: looking forward, looking back. Berlin, Germany. VDM Verlag Dr. Muller.
The regulation of electoral financing
Gray, Anthony. 2009. "The regulation of electoral financing." Oxford University Comparative Law Forum. 2009, pp. 1-21.
Criminal sanctions for cartel behaviour
Gray, Anthony. 2008. "Criminal sanctions for cartel behaviour." QUT Law Review. 8 (2), pp. 364-379.
Time to abolish the rule in Searle v Wallbank for negligence and nuisance claims
Gray, Anthony. 2008. "Time to abolish the rule in Searle v Wallbank for negligence and nuisance claims." Deakin Law Review. 13 (2), pp. 101-130.
Legal studies in action 2: Queensland
Gray, Anthony, Young, Karyl and Kenman, Sandra. 2009. Legal studies in action 2: Queensland. Brisbane, Australia. John Wiley & Sons.
Getting it right: where is the place of the wrong in multinational torts cases?
Gray, Anthony. 2008. "Getting it right: where is the place of the wrong in multinational torts cases?" The Sydney Law Review. 30 (3), pp. 537-550.
Loss distribution issues in multinational torts claims: giving substance to substance
Gray, Anthony. 2008. "Loss distribution issues in multinational torts claims: giving substance to substance." Journal of Private International Law. 4 (2), pp. 279-309.
Choice of law: the presumption in the proof of foreign law
Gray, Anthony. 2008. "Choice of law: the presumption in the proof of foreign law." University of New South Wales Law Journal. 31 (1), pp. 136-157.
Reinterpreting the trade and commerce power
Gray, Anthony. 2008. "Reinterpreting the trade and commerce power." Australian Business Law Review. 36 (1), pp. 29-46.
Policing price fixing in petroleum markets
Gray, Anthony. 2007. "Policing price fixing in petroleum markets." Australian Business Law Review. 35 (6), pp. 398-406.
FOI and the freedom of political communication
Gray, Anthony. 2007. "FOI and the freedom of political communication." Deakin Law Review. 12 (1), pp. 193-217.
The guaranteed right to vote in Australia
Gray, Anthony. 2007. "The guaranteed right to vote in Australia." QUT Law Review. 7 (2), pp. 178-197.
An exploratory study to determine students' perceptions of the value of interaction in an Australian classroom context and the perceived impact on learning outcomes
McDonald, Jacquelin, Birch, Dawn, Gray, Anthony, Gururajan, Raj, Hingst, Raymond D. and Maguire, Michael. 2005. "An exploratory study to determine students' perceptions of the value of interaction in an Australian classroom context and the perceived impact on learning outcomes." CRLL 2005: What a Difference a Pedagogy Makes: Researching Lifelong Learning and Teaching. Glasgow, Scotland 24 - 26 Jun 2005 London, United Kingdom.
Legal studies in action 1: Queensland (3rd edition) (includes teacher support manual)
Gray, Anthony and Herlihy, Gail. 2008. Legal studies in action 1: Queensland (3rd edition) (includes teacher support manual). Brisbane, Australia. John Wiley & Sons.
How Welfare to Work and WorkChoices will change womens' lives
Collins, Pauline and Gray, Anthony. 2006. "How Welfare to Work and WorkChoices will change womens' lives." Bailey, Janis, Broadbent, Kaye, Edwards, Linda, McDonald, Paula and Whitehouse, Gillian (ed.) Our Work .... Our Lives: National Conference on Women & Industrial Relations (2006). Brisbane, Australia 12 - 14 Jul 2006 Brisbane, Australia.
Legal studies in action 1 (2nd ed)
Herlihy, Gail and Gray, Anthony. 2004. Legal studies in action 1 (2nd ed). Brisbane, Australia. John Wiley & Sons.
Legal studies in action 2 (2nd ed)
Kenman, Sandra and Gray, Anthony. 2003. Legal studies in action 2 (2nd ed). Brisbane, Australia. John Wiley & Sons.
Remedy issues in multinational tort claims: substance and procedure and choice of law
Gray, Anthony. 2007. "Remedy issues in multinational tort claims: substance and procedure and choice of law." University of Queensland Law Journal. 26 (1), pp. 1-26.
The interplay of Welfare to Work and WorkChoices
Gray, Anthony and Collins, Pauline. 2007. "The interplay of Welfare to Work and WorkChoices." Hecate: an interdisciplinary journal of women's liberation. 33 (1), pp. 126-140.
The rise of Renvoi in Australia: creating the theoretical framework
Gray, Anthony. 2007. "The rise of Renvoi in Australia: creating the theoretical framework." University of New South Wales Law Journal. 30 (1), pp. 103-126.
Conflict of laws in international torts cases: the need for reform on both sides of the Tasman
Gray, Anthony. 2006. "Conflict of laws in international torts cases: the need for reform on both sides of the Tasman." Yearbook of New Zealand Jurisprudence. 9, pp. 113-140.
Freedom from disclosure of information
Gray, Anthony. 2007. "Freedom from disclosure of information." Alternative Law Journal . 32 (1), pp. 7-10.
Worry to women of Welfare to Work and WorkChoices
Collins, Pauline and Gray, Anthony. 2006. "Worry to women of Welfare to Work and WorkChoices." 61st Conference of the Australasian Law Teachers' Association (ALTA 2006). Melbourne, Australia 04 - 07 Jul 2006 Sydney, Australia.
Detaining future dangerous offenders: dangerous law
Gray, Anthony. 2004. "Detaining future dangerous offenders: dangerous law." Deakin Law Review. 9 (1), pp. 243-259.
Flexibility in conflict of laws multistate tort cases: the way forward in Australia
Gray, Anthony. 2004. "Flexibility in conflict of laws multistate tort cases: the way forward in Australia." University of Queensland Law Journal. 23 (2), pp. 435-463.
Preventive detention laws: High Court validates Queensland's Dangerous Prisoners Act 2003
Gray, Anthony. 2005. "Preventive detention laws: High Court validates Queensland's Dangerous Prisoners Act 2003." Alternative Law Journal . 30 (2), pp. 75-79.
Precedent and policy: Australian industrial relations reform in the 21st century using the corporations power
Gray, Anthony. 2005. "Precedent and policy: Australian industrial relations reform in the 21st century using the corporations power." Deakin Law Review. 10 (2), pp. 440-459.
Standard of proof, unpredictable behaviour and the High Court of Australia's verdict on preventive detention laws
Gray, Anthony. 2005. "Standard of proof, unpredictable behaviour and the High Court of Australia's verdict on preventive detention laws." Deakin Law Review. 10 (1), pp. 177-207.