Interrogations-and-Confessions-Handbook

Why do Suspects Confess? Empirical Findings 149
It is perhaps for this reason that suspects have been traditionally reluctant or
unable to exercise their right to silence.
Softley (1980), in an early observational study in four English Police Stations,
found that out of 187 suspects interrogated, 12% exercised their right to
silence to a certain extent. Four per cent refused to answer all salient questions
pertaining to the alleged crime. Older suspects were significantly more likely to
exercise their right to silence, although it is worth noting that the great majority
of suspects in all age groups did not exercise their right to silence. Similarly,
suspects with previous convictions more frequently exercised their legal right
to silence than those without previous convictions.
Other early studies support the infrequent use of the right to silence prior
to or during custodial interrogation. Zander (1979) found that 4% of his sample
had used their right of silence. Baldwin and McConville (1980) found that
about 5% of their two samples made no statements of any kind to the police.
Mitchell (1983) found that less than 1% of their sample made no statement of
any sort. There is evidence that following the implementation of PACE in 1986
suspects are increasingly exercising their right to silence. Moston, Stephenson
and Williamson (1993) found that 16% of the subjects had used their right to silence.
Of these, half refused to answer any questions and the remainder refused
to answer some. Great variation was found between different police stations in
the use of silence; e.g., in Holborn only 8% of suspects used their right to silence,
in contrast to 25% in Uxbridge. The authors suggest that both police tactics and
the behaviour of solicitors may vary from station to station and affect the extent
to which suspects exercise their right to silence. Similarly, Phillips and Brown
(1998) found that 10% of suspects refused to answer all questions and a further
13% refused to answer some questions. Moston, Stephenson and Williamson
(1993) found that certain case and background variables predicted the use of
the right to silence. The use of the right to silence was associated with the seriousness
of the offence, previous convictions and access to legal advice, but it
did not adversely affect the decision to prosecute or their plea of ‘guilty’ when
the case went to court. Those who used their right to silence were more likely
to be convicted than those who denied the offence during interrogation. The
authors suggest that the use of silence may not necessarily be to the advantage
of the suspect. Certainly, the changes to the right of silence in England
and Wales under Section 34 of the Criminal Justice and Public Order Act 1994
means suspects are placed under pressure not to exercise their right to silence
(Morgan & Stephenson, 1994).
There is much evidence that suspects are increasingly requesting, and being
allowed access to, legal advice prior to custodial interrogation. In England
PACE markedly strengthens the suspect’s right to legal advice during custodial
interrogation (Irving & McKenzie, 1989). Irving and McKenzie, in their
observational studies at an English police station in 1986 and 1987, found
that, of the 136 suspects observed, about 30% had had legal advice prior to the
interrogation. Unfortunately, in the original study at Brighton Police Station,
Irving (1980) made no mention of the number of suspects who had legal advice
prior to or during their custodial interrogation. It is surprising that such an
important factor as legal advice played no part in the original study. A similar
omission was made in the study conducted by Baldwin and McConville