CURTAILMENT OF RIGHT TO SILENCE: PRE-TRIAL DISCLOSURE OF DEFENCE

SAC I Nyomek ak Nyeap

INTRODUCTION Section 113 of the Criminal Procedure Code and other similar provisions in several other statutes stipulate that the statement of an accused person may be given in evidence against him in criminal proceeding, provided certain conditions are complied with. Such provisions are said to operate against the universally recognized principles of right to silence and privilege against self-incrimination. The right to silence provides a safeguard for the vulnerable suspects against police misconduct as well as wrongful conviction. It is also a fundamental principle in our legal system that the prosecution bears the legal burden of proof on a standard of beyond reasonable doubt, and an accused person has no obligation to assist the prosecution to prove his own guilt. Hence advocates of human rights argue that the right to silence is a basic right of constitutional importance and should not be unceremoniously abolished for wholly utilitarian or political gains. Politicians, police and other advocates of utilitarian philosophy are however more concerned with the inexorable growth of crime rate. They would prefer the police to be given more powers and leeway in order to take the criminals off the streets more effectively. Some even believe that protecting the criminals from police misconduct (of extorting confessions) is at odd with protecting the public from the criminals. The propensity of suspects to rely on the right of silence restricts the ability of police to carry out effective interviews and obtain evidence through questioning. With rapid economic and social development, there is notably a greater availability of legal representation and the rise of a class of sophisticated professional criminals who know their legal rights and use every possible means to avoid conviction if caught, including a refusal to respond to police questioning. In addition, the emergence of human rights bodies, like SUHAKAM1 that even fight for the rights of criminals, has made the job of criminal investigation more difficult than ever before. To maintain the effectiveness of combating crimes, particularly those committed by sophisticated criminals, radical changes have been made to further curtail the liberty of criminal suspects to hide behind silence as currently provided for under S. 113 of CPC and other similar laws. Hence Section 45 of the Anti Corruption Act 1997 and Section 72 of the Anti Money Laundering Act 2001 require an accused to disclose his defence to the authority before the commencement of prosecution. If the accused fails to comply, an adverse influence may be drawn against him. This article discusses the debate on

The Human Rights Commission of Malaysia

the right of silence and whether provisions for pre-trial disclosure of defence should be extended to all offences for effective crime control.

WHAT IS THE RIGHT TO SILENCE? The right to remain silent can be described as the absence of an obligation to speak. It entitles citizens to withhold information from the authorities. This is an aspect of personal freedom and privacy which results in the absence of any legal obligation to help the authorities. However, this freedom may be overridden in the interests of the administration of justice. Once summoned to testify, the citizen must disclose all relevant information so that the court may ascertain the truth and do justice.2 Under the adversarial system of justice which is based on the due process model, such right is accorded to every person, including persons who are accused of having committed a crime. In a criminal proceeding, the prosecution bears the legal burden to prove beyond reasonable doubt that the accused has indeed committed the crime, and the accused is not obliged to assist the prosecution in any way to establish his own guilt. The accused could not be called to make his defence until the prosecution has ascertained a prima facie case against him. This is in line with the notion of innocent until proven guilty. Inherent to this right to silence is the right not to have adverse inference drawn against the accused from his refusal to supply information. However, the scope of this legal immunity is contentious. There are statutory exceptions to this common law right. For instance, you have to provide your name and address if stopped while driving a vehicle, but the police cannot force you to answer direct questions. If an accused intends to rely on the defence of alibi, he has to give notice of the particulars.3 Some say there is not really a "right to silence" - in fact, it is really a right not to "self-incriminate", or privilege against self-incrimination, i.e. not to provide the police with evidence that can later be used against the suspect in court. This privilege entitles a person suspected or accused of crime to withhold from the authorities information concerning the offence attributed to them even where the information is necessary for the legal determination of the facts.4 Hence there exists a distinction between the right to silence and the privilege against self-incrimination. A useful pointer is given in the comments by Mustill LJ in the case of Director of the Serious Fraud Office; Ex parte Smith 5 as follows: The right of silence refers to a disparate number of immunities, including a specific immunity from having adverse comment made on failure to give evidence at trial. Each of these immunities is of
Zuckerman A.A.S., Trial by Unfair Means The Report of the Working Group on the Right of Silence, (1989) Crim.L.R. pg. 855 3 Illustration (b) of s 103 of the Evidence Act states that: B wishes the court to believe that at the time in question he was elsewhere. He must prove it. See also s 402A of the CPC. 4 supra N. 2 5 (1993) 1 AC 1, 31.
2

great importance, but the fact that they are all important and that they are all concerned with the protection of citizens against the abuse of powers by those investigating crimes makes it easy to assume that they are all different ways of expressing the same principle, whereas in fact they are not. Hence the term right to silence encompasses several different immunities, one of which is the immunity from being adversely commented for failing to give evidence. One of the possible bases of the right to silence is the privilege against self-incrimination, but it is by no means the only basis.6 The right to silence has both symbolical and practical importance. Symbolically, it defines the nature of the relationship between the individual and the state and preserves human dignity. In practice, it provides a safeguard for the vulnerable against wrongful convictions.7

THE DEBATE ON RIGHT TO SILENCE The right to silence is a controversial issue mainly because it lacks a consensus as to its underlying rationale and the legislative enactment is unclear about its ambit. Utilitarians strongly oppose the right to silence exercisable by the accused in that this right only gives an unnecessary advantage to the guilty without helping the innocent. The innocent has no need for the right, for if he is innocent, he will be more than willing to speak to clear his name. Jeremy Bentham, who represents classical utilitarianism, stated that: If all the criminals of every class had assembled and framed a system after their own wishes, is not this rule the very first they would have established for their security? Innocence never takes advantage of it. Innocence claims the right of speaking as guilt invokes the privilege of silence.8 Bentham argued that the right of silence is an impediment to the quest for the truth and should be removed. He also argued that a defendant should be expected to testify, as the resulting testimony is the best form of evidence on which to base a trial. To deny the court this indispensable source of evidence was seen by him as misguided, since it could lead to more draconian methods being used by the state to secure evidence.9 Police officers have for long seen suspects propensity to rely on the right of silence as restricting their ability to carry out effective interviews and obtain
Wan Wai Yee, Right of Silence and drawing of adverse inference on the accuseds refusal to testify at trial, [1996] 17 Sing L R 88, pg. 92 7 Nalina Nadarajah, The Right to Silence Recent Development in the UK, [1996] Malaysian Law News June 1996, pg 29 8 Bentham J. (1825) Treaties on Judicial Evidence. Quoted by Wan Wai Yee in Right of Silence and drawing of adverse inference on the accuseds refusal to testify at trial, [1996] 17 Sing LR 88, at pg 93 9 Bucke T., Street R. and Brown D. (2000) The right of silence: the impact of the Criminal Justice and Public Order Act 1994. Home Office Research Study No. 199. London: Home Office, pg. 3
6

evidence through questioning. Professional criminals have been described as hiding behind silence and exploiting a weakness in the judicial system.10 Absolute right of silence will definitely undermine the efficacy of criminal investigation and prosecution. Investigators and prosecutors will be denied valuable evidence, including admissions and confessions of the accused persons. Consequently, more guilty criminals will go scot-free and crime rates will soar. Utilitarians also advocate that the accused should disclose his defence during investigation stage. According to them, at present, the accused has the unfair advantage by virtue of his freedom to say nothing during interrogation and not to reveal his defence before the trial. Since the accused knows what the police and the prosecution have against him, he is able to tailor his defence and surprise the prosecution with it at the trial. On the other hand, proponents of the right to silence claim that it is a basic right of constitutional significance and should not be unceremoniously abolished for wholly utilitarian or political gains.11 In essence, the right to silence and privilege against self-incrimination are bound, by their very nature, to help the guilty and minimal procedural fairness must be afforded to all, regardless of guilt.12 The abolition or diminishing of the right or privilege, would, at the extreme, reverse the burden of proof and the presumption of innocence. These two rules are fundamental in criminal jurisprudence, as professed under the Golden Thread Rule of Woolmington v DPP.13 Unless the prosecution has ascertained a prima facie case, there will be no requirement for the defence to raise some doubt as to the prosecutions case in order to refute the prosecutions submission. The accused is not obliged to assist the prosecution to prove his own guilt, e.g. by giving a confession. The right to silence has also been defended on the broader level that it protects the innocents from wrongful conviction. Proponents of this right argued against any changes which would put pressure on innocent especially vulnerable suspects to respond to police questions and unwittingly incriminate themselves. The possibility of an increase in convictions as result of any change in the law was seen to be outweighed by the risk of future miscarriage of justice.14 On the other hand, there is no evidence to show that the right of silence is an impediment to the search for truth.15 Of far greater concern to the proponents of the right to silence has been the disclosure of information by the suspects during police interrogation. Uninhibited police interrogation poses a serious risk to the physical and mental integrity of the suspect and to the probative quality of confession obtained from the suspect. Suspects under investigation are likely to experience considerable strain even when they are innocent, while those who have something to hide or fear may be doubly susceptible to
10 11

ibid pg.2 Nalina Nadarajah, supra N.7, pg 29. 12 Zuckerman, supra N. 2, pg. 856 13 [1935] AC 462 14 supra N.9 15 Wan Wai Yee Right of Silence and drawing of adverse inference on the accuseds refusal to testify at trial, [1996] 17 Sing LR 88, at pg 95

confusion and suggestibility. If one adds to this the not unnatural tendency of the investigator to manipulate the suspects responses and interpret them in a way that confirms his own suspicion, one realises that the scope for unreliability of confession is great.16 Police are at war with dangerous men. They do not have the full co-operation of the public or always of the courts. Yet their reputation depends upon their arrest and conviction record. Being at war, they tend to use the weapons of war. Police officers who are at the end of the information and desperate to solve crime might take all steps to get statements of their own liking from witnesses and suspects. It is in recognition of this fact that the law has permitted very limited use of statements to the police in the courts.17 Justice Goldberg summed up the hazards of relying on confessions in Escobedo v. Illinois 18 when he stated that a system "which comes to depend on the confession will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation." In conclusion, there exists an age-old conflict between the interest of a person suspected of crime and the interest of society as a whole in bringing offenders to justice. Policy makers try hard to strike balance between the two interests. At which point the balance is struck depends very much on the social and political background of the society.

CURTAILMENT OF RIGHT TO SILENCE Notwithstanding the strong objections from advocates of human rights, the right of accused persons to remain silent has been severely curtailed in some jurisdictions like UK, Singapore and France in recent years. In the early days in U.K., the Criminal Evidence Act of 1898 gave the right to silence of accused persons a statutory basis. Every accused could choose whether or not to give evidence in his defence. If he chose not to, the prosecution was not allowed to make adverse comments about the fact. The act also expressively preserved the defendant's right to make unsworn statement at trial. Arguments for abolishing or modifying this right to silence were called for by the Eleventh Report of the Criminal Law Revision Committee19 and subsequently the Royal Commission on Criminal Procedure. These reports laid the foundation to the Criminal Justice and Public Order Act (CJPOA) 199420. The right to silence, described above, has since been subjected to significant statutory modification. Whilst it has, in terms, been abolished, a suspect or defendant who now remains silent runs the considerable risk of that silence being used against him at a number of stages of the prosecution process. A prominent jurist, Prof.
Zuckerman, supra N.2, pg. 857 th Krishnamurthi, K. (1981) Police Diaries, Statements, Reports, Investigation, Arrests, etc. 4 edition. Allahabad: Law Book Co. 18 Escobedo v. Illinois, 378 U.S. 478, 489 (1964) 19 English Criminal Law Revision Committee's Report of 1972, Eleventh Report on Evidence (General) 20 http://www.hmso.gov.uk/acts/acts1994/Ukpga_19940033_en_1.htm
17 16

Ronald Dworkin thus noted, the ancient right (to silence) is about to be extinguished in the nation which invented it.21 The statutory framework governing the implication of the pre-trial silence is to be found in sections 34 to 38 of the Criminal Justice and Public Order Act 1994. It is important to note that it is not silence, or failure to answer police questions per se, which might have adverse consequences for a defendant22. Rather it is a failure to tell the police about facts which the defendant relies upon in his defence at trial . This is governed by section 34 which states that the court may draw inferences23: " at anytime before he was charged with the offence, on being questioned under cautionfailed to mention any fact relied on in his defence in those proceedings..being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned" Thus adverse consequences may follow even if a suspect did answer police questions, for example where the suspect lied to the police or generally told the truth but omitted certain significant facts. These adverse consequences may be drawn by the court, however, it is expressly provided by section 38(3) of the CJPOA, that a person cannot be convicted on the basis of inferences alone. Ironically, it was Singapore that became the first government to adopt the English Criminal Law Revision Committees recommendations in 1976.24 The Singapore CPC was amended25 and it effectively diminished the right of an accused person to remain silent during police interrogation. An accused person, upon being charged with an offence or officially informed that he might be prosecuted for it, is now required to be served with a notice in writing, which has to be explained to him. The notice calls for the accused to disclose his defence during the investigation stage. If the accused fails to do so and later rely on a defence that has not been disclosed, he faces the danger of having adverse inference drawn on his silence at his trial.

POSITION IN MALAYSIA

O'Reilly, G.W., England limits the right to silence and moves towards an inquisitorial system of justice, [1994] 85 Journal of Criminal Law & Criminology 402 th Cape, Ed., The Right To Silence : New Developments In England And Wales , The 12 Commonwealth Law Conference papers, Kuala Lumpur. 23 For the conditions to draw inference see the cases of R v Argent ( 1997 ) 2 Cr App R 27,and R v Condron ( 1997 ) 1 WLR 827 24 The Eleventh Report, supra N.19. See O'reilly, G. W., Criminal Law: England Limits The Right To Silence And Moves Towards An Inquisitorial System Of Justice [1994] 85 Journal of Criminal Law & Criminology 402 25 Criminal Procedure Code (Amendment) Act, No.10 of 1976 (effective Jan. 1, 1977)
22

21

The Malaysian CPC, which was modeled on the Indian Code of Criminal Procedure, initially allowed no statement made by an accused person to a police officer in the course of investigation to be provable at the trial. Only confessions or statements made to a magistrate under s 115 were admissible in evidence. Krishnamurthi (1981) said that the purpose of this legal restriction (in India) was to prevent police from harassing a suspect during investigation. The standard of police personnel not being too high and the people being most illiterate, these restrictions were considered to be essential to the proper administration of justice; otherwise the police might be tempted to use the short cut of extracting confessions rather than the labourous and scientific process of investigation. 26 The Criminal Procedure Code (Amendment and Extension) Act 197627 brought about major changes in the CPC. Amongst the changes introduced was the substitution of the old s 113 with a completely new one. The reasons for introducing the new s 113 as set out in the explanatory statement of the Bill to the Act are as follows: Section 113 The substitute section proposes a major change. Hitherto no statement made by an accused person to a police officer in the course of a police investigation has been admissible in evidence at the trial. But the protection of the accused from selfincrimination has been much eroded by subsequent laws, and now in trials for nearly a hundred different offences under thirteen laws the cautioned statement procedure applies. The object of the proposed amendment is to extend the cautioned statement procedure to all criminal investigations and trials. Indeed before 1976, major inroads had been made into the privilege against self-incrimination with the enactment of the provisions of cautioned statements in several legislations, inter alia:

Regulation 33 of the Emergency Regulations 1948 S 13(4) of the Prevention of Corruption Ordinance No. 5 of 1950, added by Ordinance 39 of 1952 S 37A of the Dangerous Drugs Act 1952 S 75 of the Internal Security Act 1960 S 16 of the Kidnapping Act 1961 S 15 of the Prevention of Corruption Act 1961 Regulation 21(1) of the Essential (Security Cases) (Amendment) Regulations 1975

Regulation 33 of the Emergency Regulations 1948 was the common ancestor of all these provisions, which made the first breach in the long standing principle embodied in the old s 113 of the CPC.28

26 27 28

Krishnamurthi, K. N.17, pg. 498 Act A324, with effect from 10 January 1976 per Suffian LP in PP v Zakaria bin Isa [1978] 2 MLJ 35

Following the footsteps of Singapore and the UK, Malaysia has, with the enactment of the Anti-Corruption Act 199729, severely curtailed the right to silence of suspects in bribery cases. This can be seen by the provision of section 45(3) of the Act30 which states that: Where any person is arrested or is informed that he may be prosecuted for any offence under this Act, he shall be served with a notice in writing, which shall be explained to him, to the following effect: You have been arrested/informed that you may be prosecuted for(the possible offence under this Act). Do you wish to say anything? If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be less likely to be believed, and this may have a bad effect on your case in general. If you wish to mention any fact now, and you would like it written down, this will be done. An examination of this wording will show that it has departed materially from the traditional wording found in s 113 CPC. The then existing caution31 to the accused that he was not obliged to say anything was substituted by one which warns him of adverse inferences being subsequently drawn by the court if he failed to mention a fact which in the circumstances existing at the time he would have been expected to mention when questioned.32 The fundamental difference is this: while the caution emphasised an accuseds right to remain silent, the new warning encourages him to speak in that it advises him of the adverse consequences that may follow if he insists on remaining silent in matters relevant to his defence.33 Hence, if the accused failed to disclose his defence during the investigation stage, then his defence at the trial would be less likely to be believed. The failure to disclose a material fact may also on the basis of such inferences be treated as corroboration of any evidence given against the accused to which the failure to disclose is material.34 The rationale for this enactment was, according to the then Finance Minister when tabling the Bill in the Parliament, to arm the Anti Corruption Agency with more ammunition to fight the graft menace which had become more serious. Corruption cases, usually perpetrated by two willing parties, are difficult to detect and prove, and witnesses are reluctant to cooperate with the authorities.35 Similar rationale was put forward by The Minister of
29 30 31

Act 575, which replaced the Prevention of Corruption Act 1961. In pari meteria with S. 122 of Singapore CPC 1976 and S. 34 CJPOA 1994 (UK). under s 15 of Prevention of Corruption Act 1961, which was in pari materia with s 113 CPC. 32 S 45(6). 33 Chandra Mohan, Police Interrogation and the Right of Silence in the Republic of Singapore, [1986] 2 MLJ xxviii 34 s 45(6) 35 Parliamentary Debates (Perbahasan Dewan Rakyat) July 1997, Jilid 3, Bil 36, Ruangan 42 130.

Law of Singapore when presenting the Singapore Criminal Procedure Code (Amendment) Bill as follows: Experience has shown that determined criminals are not sufficiently deterred by merely enhancing the punishments for various offences. A greater deterrent would be to increase the chances of their conviction when they are apprehended, and with this in mind, it has been decided through this Amendment Bill to adopt certain of the recommendations of the Criminal Law Revision Committee of the Untied Kingdom whose report was presented to the UK Parliament in June 1972. 36 The same provisions later found its way into the newly enacted Anti Money Laundering Act 200137 under Section 72. Compared to corruption cases, money-laundering offences are more complex and thus harder to prove. Hence the tough stance taken by the legislators in incorporating the provisions of pre-trial disclosure of defence (S. 72) into the new law is understandable. As the two laws are still quite new, there have not been any reported decisions on the use of the new provisions. In Singapore, the use of these amendments in the context of pre-trial silence appears for the first time in a reported decision in Ng Chong Teck v PP.38 In that case, the appellant was arrested having been found with possession of some drugs and was subsequently charged for drug trafficking. When first questioned by the narcotics officers as to what contents of the plastic packets were, the appellant said nothing. When asked to make a cautioned statement pursuant to s 122(6) of the CPC (Singapore), he merely said, I have nothing to say. That is all. At trial, the appellant claimed in his defence that the drugs were for his own consumption and that they represented four months supply. The trial judges rejected his evidence and convicted him. He appealed against the decision. The Singapore Court of Criminal Appeal, in dismissing the appeal, inter alia, said that the trial judge were right in rejecting the appellants evidence at trial as having had no less than five opportunities to give his explanation for being in possession of the heroin, he chose to remain silent. His defence was nothing more than an afterthought. Their Lordships added that This procedure39 requires the caution to be explained and it is to the effect that any defence intended to be relied upon at the trial ought to be stated then or else it may be less likely to be believed. Plain enough words, but all the appellant would say was: I have

36

Singapore Parliamentary Debates, vol. 34 (1975), cols. 1217-1218. Quoted in Wan Wai Yee, Right of Silence and drawing of adverse inference on the accuseds refusal to testify at trial, [1996] 17 Sing LR 88, pg 115. See also Chandra Mohan, Police Interrogation and the Right of Silence in the Republic of Singapore, [1986] 2 MLJ xxviii, pg xxxi. 37 Act 613 38 [1992] 1 SLR 863. See Michael Hor The privilege against self-incrimination and fairness to the accused [1993] Singapore Journal of Legal Studies 35, at pg 36 footnote 7 39 under s 122(6) of the Singapore CPC

nothing to say. That is all. These are words of defiance and not of explanation. It can thus be seen from the above judgment that with the new law, remaining silent is now a far less attractive option because there is the risk that it may prejudice the defence case.

EFFECT OF THE CURTAILMENT Crime statistics in UK showed that the new provisions curtailing the right to silence have not produced any discernable increase in charges and convictions of criminals.40 Singapores figures also suggested that the amendments per se have not been perceived by potential offenders as sufficiently increasing their risk of detection to deter them from crime. There was no visible decrease in the crime rate after the amendments were introduced in 1977.41 Generally, the new provisions have also not significantly changed the way accused persons respond to police questioning. Vast majority of suspects when given the right to remain silent did not exercise that right when questioned by the police.42 However Buckle et al (2000) reported that the provisions have had a marked positive impact on the efficiencies of the investigation and prosecution process. As a result of greater openness between police and legal advisers about the evidence, police questioning has become more productive. Suspects in turn have provided greater scope for the investigation of accounts following their disclosures of defence. And where silence augmented the other available evidence, prosecutors were rewarded with greater certainty of convictions. While the overall rate of conviction has not increased, the hope was that the provisions would make it easier to secure appropriate convictions and the conviction of professional criminals. The UK and Singapore experience may have influenced the Malaysian legislators to exercise caution when introducing similar provisions into our legal framework. So far the provisions have only been introduced into the laws against corruption and money laundering, two classes of sophisticated offences. Extending the provisions to all other offences at this stage would not yield any positive result as experience in UK and Singapore suggested. Besides, majority of criminals in Malaysia are lowly educated and financially disadvantaged. They cant be expected to
see for example Leng, R (1993) The Right to silence in Police Interrogation: a study of some of the issues underlying the debate. Royal Commission on Criminal Justice Research Study No. 10. London: HMSO., Buckle, T., Street, R. and Brown, D. (2000) The Right of Silence: the impact of the Criminal Justice and Public Order Act 1994. Home Office Research Study No. 199. London: Home Office., and Phillips, C. and Brown, D. (1998) Entry into the Criminal Justice System: a survey of police arrets and their outcomes. Home Office Research Study No. 185. London: Home Office. 41 Chandra Mohan, Police Interrogation and the Right of Silence in the Republic of Singapore, [1986] 2 MLJ xxvii 42 N 39 and 41, supra
40

understand the complicated nature of the implication of silence or nondisclosure at pre-trial stage without proper legal advice, something they cant afford. The same however cannot be said of the sophisticated class of modern day criminals who are well educated and thus more aware of their rights and can afford the luxury of legal representation. Such crimes are usually harder to detect, as those sophisticated minds know how to cover their trails well. The propensity to seek refuge behind silence is also greater. And they might have the advantage to ambush the prosecution by raising unannounced defences, when they already know every bit of the prosecutions case. Hence it would be wise to extend the curtailment of right to silence to all white-collar and commercial crimes which are sophisticated in nature. Investigation of white-collar and commercial crimes are quite different from other conventional offences as far as questioning of suspects is concerned. The police do not usually arrest and detain the suspects for interrogation at the first available opportunity. The case against the suspect is usually built up by first obtaining all available evidence. The suspect would normally be confronted towards the end of investigation. At this stage, the suspects confession is not very valuable as he would not be likely to disclose anything that the police have not already known. Besides, the courts are usually reluctant to accept cautioned statements in evidence. What is evidentially more valuable would be the suspects disclosure of his defence to the case against him. Disclosure of defence during investigation stage gives the police a wider scope of investigation as the defence needs to be verified. Both the police and the suspects would know each others case well at this stage and it could thus evade prolonged prosecution process. If the case against the suspect is strong, chances of conviction would increase. Conversely, if the suspect put forward a valid defence, he may be cleared without being charged in court.

CONCLUSION The days when the standard of police personnel not being too high and the people being most illiterate as described by Krisnamurthi43 are long gone. In this modern era, the police no longer can afford to resort to harsh methods of interrogation to extract confessions. Advancement in the society calls for changes in the methods of police investigation. Curtailment of the right to silence of sophisticated criminals is certainly a move in the right direction. Practically speaking, such provisions do not actually abolish the right of silence. As before, a suspect can still choose to remain silent during police interviews. Before any inference is drawn from the accuseds failure to mention a fact, the fact will have to be one relied upon in his defence at the hearing. He is not compelled to make a statement incriminating himself and it is also no offence to refuse to answer questions.44 In short, such provisions save time and resources of both the prosecution and accused and ensure swift administration of justice.
43 44

N. 17, supra Supra N.41