Twenty years on, the right of silence and legal advice: the spiralling costs of an unfair exchange

This article appraises the cumulative effects of the curtailment of the right of silence after 20 years. A controversial measure when enacted, its long-term effects have not been examined. It is argued that the Act was introduced on a flawed premise; has been interpreted very broadly; and has facilitated further restrictions on due process rights. Drawing upon the case law, academic commentary and empirical research, it is argued that the provisions have compromised the lawyer–client relationship and undermined the effectiveness of legal representation. Not only have the provisions made police interviews part of the trial (as Jackson argues), but they have also imported to the courtroom traditional police suspicions of defendants and their lawyers. The court has accordingly interpreted the provisions to the detriment of another ‘fundamental condition’; legal professional privilege. The changes have thus had a wider impact than was envisaged at the time.