The sound of silence: Brexit provides an opportunity to improve human rights

For years, there have been threats to repeal the Human Rights Act and, with Brexit looming, it appears that repeal may be imminent. It is widely believed that an accused person’s human rights will be narrowed if the Human Rights Act is no longer in effect. There are however, some fair trial rights that are so completely eroded, despite the Human Rights Act, that repealing the Act would not make the situation worse. Repealing the Human Rights Act may create an opportunity to improve the rights of the accused as we examine and reshape the legal system following Brexit.
One such right is the right to remain silent. As the law stands, the right to silence in England and Wales no longer exists in practice. Despite the Human Rights Act, the Criminal Justice and Public Order Act allows juries in England and Wales to find an adverse inference against defendants during trial based on a defendant’s failure to explain themselves. Although technically limited, it applies whenever the defendant remains silent or attempts to later change their narrative. Thus, an adverse inference could be drawn in almost every case and can be a contributing factor toward conviction. The result is that a defendant has no real choice as either choosing to speak or exercising the right to remain silent contributes to their conviction.
This paper argues that despite the Human Rights Act, the Criminal Justice and Public Order Act is too broad with regard to the right to silence. Practically speaking, repealing the Human Rights Act cannot make the situation for the right to silence worse and should be seen as an opportunity to review and improve the law and strengthen the human rights of the accused.

The Future of Human Rights in the UK (2017) Editor(s): Claire-Michelle Smyth, Richard Lang. ISBN-13: 978-1-4438-9513-2. This edited collection comprises a selection of the papers presented one day conference entitled “The Future of Human Rights in the UK”