영국의 수사절차상 진술거부권의 고지에 관한 고찰

The right to remain silent is guaranteed by Korean Constitution and designed to protect a person who is undergoing police questioning or trial. This right may help a person avoid making self-incriminating statements. Nevertheless, the Criminal Procedure Act in Korea does not include the duty of notifying the right to silence which is important to protect the suspects arrested. This study examined the right to silence of criminal suspects in the United Kingdom. In England and Wales, the right of suspects to refuse to answer questions during their actual trial (the right to remain silent as it is now known) was well established at common law from the 17th century. However the right of suspects to refuse to answer questions before trial was not codified as Judges' Rules until 1912. In 1972, the Criminal Law Revision Committee recommended that inferences should be drawn from silence, but the committee report was strongly opposed. Certain changes were introduced with the Police and Criminal Evidence Act 1984 (commonly known as PACE). PACE and Code of Practice in the UK cover every detail on arrest and following procedures including detention, identification, and interview. PACE Code C, one of the codes of practice issued under PACE, was modified to specify a uniform wording for the caution, namely: “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.” Under Code C the right to silence was amended by allowing adverse inferences to be drawn at a court hearing in cases where a suspect refuses to explain something, and then later produces an explanation In conclusion, this study suggests that duty of notice should include the duty to inform the right to silence when the arrest takes place in order to guarantee the suspects' right to defense in Kore Criminal Procedure.