n Acta Juridica - Silence and common sense : evidence, criminal process and criminology




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 and Nugent JA have articulated strong arguments in favour of restricting the right to remain silent. The South African Law Commission 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. The law commission's proposals are largely modelled on the English Criminal Justice and Public Order Act 1994.

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 and arrested persons. Clearly imposing a 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. However, the broad focus of this chapter is not constitutionality - 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. 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. 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.


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