Silence and common sense
| Jurisdiction | South Africa |
| Date | 15 August 2019 |
| Pages | 92-112 |
| Author | P J Schwikkard |
| Published date | 15 August 2019 |
Part B
EVIDENCE, CRIMINAL PROCESS AND
CRIMINOLOGY
Silence and common sense
P J SCHWIKKARD*
University of Cape Town
I INTRODUCTION
The relationship between common sense and rationality as well as the
desirability of drawing a negative inference from an accused or suspect’s
silence are the basis of a centuries old debate. At present the common
sense argument that the right to remain silent should be restricted as it
only protects the guilty is gaining support. Eminent judges such as Van
Dijkhorst J
1
and Nugent JA
2
have articulated strong arguments in favour
of restricting the right to remain silent. The South African Law
Commission
3
has recently proposed that in a number of specified
circumstances adverse inferences be permitted to be drawn from pre-trial
silence. There is no doubt that such a view has both popular and political
support. The argument for restricting the right to silence has also received
support internationally.
4
The law commission’s proposals are largely
modelled on the English Criminal Justice and Public Order Act 1994.
5
Restricting the right to remain silent raises a host of constitutional
issues. Section 35 of the Constitution expressly confers the right to
remain silent on accused
6
and arrested persons.
7
Clearly imposing a
*BA (Wits) LLM (Natal) LLD (Stellenbosch). The text of this chapter was delivered on the
occasion of the author’s inaugural lecture as Professor in the Department of Criminal Justice,
University of Cape Town, 19 March 2003.
1
K van Dijkhorst ‘The right to silence: Is the game worth the candle?’(2001) 118 SALJ 26.
2
R W Nugent ‘Self-incrimination in perspective’ (1999) 116 SALJ 501. See also South
African Law Comission Report (Project 73) ‘A more inquisitorial approach to criminal
procedure – police questioning, defence disclosure, the role of judicial officers and judicial
management of trials’(2002).
3
Ibid.
4
See for example New South Wales Law Reform Commission (Report 95) ‘The right to
silence’(2000).
5
Sections 34–7.
6
Section 35(3).
7
Section 35(1).
92
2003 Acta Juridica 92
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criminal sanction on a person who elects to remain silent would infringe
these constitutional rights. It is more debatable whether drawing an
adverse inference from a person’s failure to speak up in specified
circumstances would similarly infringe the right to remain silent.
8
However, the broad focus of this chapter is not constitutionality
9
–
although the arguments raised below remain relevant to a limitations
analysis. What this chapter examines is the common sense assertion that
silence is claimed by and protects the guilty and that restricting the right
to remain silent will enhance the effective functioning of the criminal
justice system.
10
The scope of the chapter is further narrowed by
focussing on only one of the amendments proposed by the South African
Law Commission namely, that a court be allowed to draw an inference
from the accused’s failure to mention a fact when questioned by the
police prior to, or on being informed of, the charge or potential charge if
the accused then relies on the unmentioned fact later at his or her trial.
11
Because those who favour restricting the right to remain silent make
strong common sense claims, this chapter also makes a tentative attempt
to explore the role of common sense in decision making.
8
These debates in the South African Law Commission’s Report (n 2) at paras 6.7 –6.54.
9
The constitutional argument was canvassed by both myself and R W Nugent JA in the
Law Commissions Report (n 2).
10
In terms of this view, restricting the right to remain silent would allow the police to focus
their investigations appropriately, encourage guilty pleas and generally shorten trials.
11
The relevant section reads as follows:
‘Effect of accused’s failure to mention facts when questioned or charged
207A (1) Where in criminal proceedings evidence is given that the accused –
(a) at any time before he or she was charged with an offence, on being questioned by a
police officer substantially in accordance with a Code of Police Conduct that has
been promulgated in terms of the Police Act No 7 of 1958, and on being informed of
the provisions of subsection(2), in an attempt to determine whether or by whom the
offence had been committed, failed to mention any fact relied on in his or her
defence in such criminal proceedings; or
(b) on being charged with the offence or officially informed by such police officer that
he or she might be prosecuted for the offence and that the court might draw an
inference contemplated in subsection (2), failed to mention any such fact, being a fact
which in the circumstances existing at the time the accused could reasonably have
been expected to mention when so harged or informed,
the provisions of subsection(2) shall apply.
(2) Whenever in criminal proceedings the court has to decide whether –
(a) the accused may be discharged at the close of the case for the prosecution in terms of
section 174;
(b) the accused is guilty of the offence charged or of another offence which constitutes a
competent verdict on the offence charged,
the court may draw such inference from the accused’s failure contemplated in
subsection(1) as may be reasonable and justifiable in the circumstances.
...’.
93SILENCE AND COMMON SENSE
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