The Right to Silence – or the presumption of Guilt? Introduction According to an understanding of casual conversation articulated by various theories of discourse analysis, it is extremely unlikely that silence would ever be regarded as an appropriate response to a question or accusation. 1 Yet, as noted by Georgina Heydon, in the specialised institutional setting of a police interview, it is expected by the legislators in many jurisdictions that ordinary people will be able to access this interactional resource unproblematically, and presumably without any assumption of listener prejudice. 2 This is particularly the case with regards to the Criminal Justice and Public Order Act 1994 (CJPOA), which formed a significant change to the law on the right to silence. 3 The right to silence is thought by many Judges and academics to be a constitutional right; which preserves Viscount Sankey’s presumption of innocence in Woolmington 4 . For this reason, the legislative changes to a defendant's right to silence, brought about by sections 34-38 of this Act, represented one of the most controversial reforms of English criminal law in the last century. 5 In this regard, John Jackson submits that the issue began to be debated in 1972 when the Criminal Law Revision Committee recommended a number of changes to permit the courts to draw inferences from a defendant’s silence. 6 However, as Abenaa Owusu- Bempah notes elsewhere, the focus of this scrutiny has tended to be on ss.34 and 35 of the CJPOA, 7 with Sections 36 and 37 been largely overlooked. 8 It will be recalled that the right to silence formerly comprises the privilege against self- incrimination and the right not to have adverse inferences drawn from his silence. 9 Prior to the CJPOA, no evidential significance could be attached to an accused’s exercise of the right 1 Georgina Heydon: Civil right or social privilege? A discourse analytic response to a legal problem (July, 2011) 43 (9) Journal of Pragmatics 2308 2 ibid 3 Hodge M Malek QC et al, Phipson on Evidence (Sweet & Maxwell 2013) 1253 4 Woolmington v DPP [1935] AC 462 5 Anthony F. Jennings, A. Ashworth and B. Emmerson, ‘Silence and safety: the impact of human rights law’ (November, 2000) Crim LR 879 6 John D Jackson, ‘Silence and proof: extending the boundaries of criminal proceedings in the United Kingdom’ (2001) 5 (3) E & P 145 7 Abenaa Owusu-Bempah, ‘Silence in suspicious circumstances’ (2014) 2 Crim LR 126 8 ibid 9 Adrian Keane, Paul Mckeown, The Modern Law of Evidence (OUP Oxford, 2012) 409 1