Right of Silence PDF

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My own notes on Right of Silence with reference to my study Guide and Statute Book 2017...

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Right of Silence

Right of Silence & Adverse Inferences under Criminal Justice and Public Order Act (CJPOA) 1994 The right to silence The right to silence is closely bound up with the presumption of innocence and the privilege against self-incrimination. Both the presumption of innocence and the privilege against self-incrimination play an important role in protecting a citizen’s liberty from state interference. In D v Director of the Serious Fraud Office ex p Smith [1993], Lord Mustill explored the variety of immunities bound up in the right to silence. Lord Mustill described the foundation of the privilege not to be compelled to answer questions put by persons in authority as ‘the common view that one person should so far as possible be entitled to tell another person to mind his own business.’

The evidential significance of silence Prior to the Criminal Justice and Public Order Act 1994 (CJPOA) 1994, no evidential significance could be attached to an accused’s exercise of the right to silence during the police investigation as per Gilbert (1977). If and where a jury did learn of an accused’s silence in response to police questions, they were reminded of the accused’s right to remain silent and were warned not to draw any adverse inferences from it. The Criminal Evidence Act 1898 provided that the failure of the accused to testify was not to be made the subject of any comment by the prosecution. Comment by the judge was permissible but the scope for it was limited, and it had always to be accompanied by a reminder that the accused was not bound to give evidence and that, while the jury had been deprived of the opportunity of hearing the accused’s story tested in cross-examination, they were not to assume that the accused was guilty because the accused had not gone into the witness box.

The CJPOA 1994 dramatically and controversially reformed the law. Its provisions have generated a large amount of appellate case law and several judgments by the European Court of Human Rights(ECHR). The CJPOA 1994 provides that adverse inferences may, under certain circumstances, be drawn from a suspect’s silence in the face of police questioning (outlined in s34, s36 and s37). Section 35 details the circumstances in which adverse inferences may be drawn from an accused’s failure to give evidence at their trial.

Defendant’s silence: The privilege against self-incriminated, of which the right to silence is a part, has been acknowledged since the excesses of the Court of star Chamber in the seventeenth century to be vital to protect the individual from an abuse of state power. The right to silence is an aspect of the privilege against self-incrimination whereby a suspect who is being interrogated by a state official is not forced to respond to questions. The principle is thus applied to protect the individual from the power of the state. The Criminal Justice and Public Order Act (CJPOA) 1994 has eroded this long-standing principle to the extent that although a suspect is not compelled by the law to respond to questioning under official interrogation, he or she may face adverse evidential consequences from such a failure under certain circumstances. The evidential consequences which may arise for the defendant arising from a failure to respond to pre-trial questionings. Parkers v R (1976) illustrate the point. Section 34(5) of CJPOA preserves this common law rule. The CJPOA 1994 (as amended) has made considerable inroads into what was the common law principle of the right to silence. In essence, under certain conditions, a suspect’s failure to respond to police questions may be used as supportive defence of guilt. The key sections are s34, s36 and s36.

It is the Accused who choses whether to testify or not to testify as per Bowden (1998). Obviously, if the Accused decides to testify, then we need to apply:   

Section 34 Section 36 Section 37

If the Accused decides not to testify but he does it through his counsel, then we need to apply: 

Section 35

There are 2 particular circumstances in which silence is important:

1. Before a criminal prosecution starts, there are 4 situations in this circumstance:  Silence under questioning (s34) of Criminal Justice and Public Order Act (CJPOA) 1994.  Questioning done by police.  Failure to explain objects, substances or marks under person - s36  Failure to explain presence at the scene of crime – s37  Failure to provide bodily samples under 62 PACE.

2. Where Criminal Prosecution has commenced. Here we have 3 situations:  Failure to produce a defence statement.  Failure of Accused to testify in this own defence – s35 Criminal Justice and Public Order Act 1994.  Failure to call witness. 

Section 34 CJPOA1994- Silence upon being asked a question by the police: The object of s.34 is to deter late fabrication of defences and to encourage early disclosure of genuine defences.

There are 3 conditions to be satisfied for inferences to be drawn from the Accused: 1) The silence should be upon being questioned and upon being charged. 2) The Fact that is not mentioned must be relied upon as part of the defence. 3) Failure to mention the fact must be reasonable.

The key objectives of s34 are two-fold:  

To discourage defendants from running “ambush” defences late in the trial process; To encourage defendants to make early disclosure of any defence or fact which is consistent with their innocence.

Moshaid (1998) - S34 (1)(a) – Facts relied on in the Accused defence If the Accused does not have any defence, then it is common sense to rely on common fact. In reliance on legal advice, the suspect is being interviewed and his right of silence will be put on trial. In the course of trial, he will not be testified nor called witness but he will appeal against conviction that no inference could be drawn against the appellant (Accused) because there was no fact upon which he relied on for his defence at trial.

 The silence should be upon being questioned and upon being charged:

When is the Accused required to disclosed facts in his defence?: 1. Upon being questioned, but only if:  He has been cautioned and  (cautioned: the police said to the Accused that he can remained silence. This is a type of warning given to the Accused and said to him that your silence can be played against you)  He has not yet been charged with the offence. After that, then inference can be played against him 2. Upon being charged with the offence.

 The Fact that is not mentioned must be relied upon as part of the defence: Note: inferences cannot be drawn simply because the Accused has not answered a question during the interview. Inferences can only be drawn if the Accused: i. ii.

Relies on a fact in his defence and He did not mentioned a fact when questioned or charged.

He did not mentioned a fact when questioned or charged: cases – 

R v Brizalanie (2004):

It is necessary to distinguish between cross-examination which test the prosecution case and crossed that suggest a positive fact or defence.



R v Webber (2004):

A party relies on a fact in s34, not only when the Defendant gives evidence of that fact, but also when the Defendant’s counsel puts a specific case to the prosecution’s witnesses. This is not the case if the Accused counsel is only asking question to test the prosecution case.

Webber (2004): S34 (1)(a) – Facts relied on in the Accused defence: A defendant relies on a fact or matter in his defence. Not only when he keeps or adduces evidence of it but also when his counsel acting on his instructions, put specific and positive case to prosecution witnesses as opposed to asking questions intended to test the prosecution case. 2 ways to rely on fact to the Accused’s Defence:

 

The accused himself by giving evidence. By counsel putting the Accused version of event without the Accused himself giving evidence. In Exam Whether the Accused put forward his evidence. Pg 50

 Failure to mention the fact must be reasonable: R v Cowans: There should be evidence before the jury of the reason for silence. It was not possible for counsel to simply give the reason in the absence of any evidence.

Reasons to remain silent:

1) Legal advise giving to the Accused: Case: Condron v UK – It was necessary that the Jury be directed that it should only draw adverse inference if it concluded that the only reason for failing to mention the fact that the Accused had no answer to the question.

2) R v Argent: Facts:   

The Defendant gave a no-comment answer to questioning but at trial he claimed that he had left the scene before the crime. The reference to fact in s34 means a fact that the Accused could reasonably be expected to mention the circumstances existing at the time. Additional safeguard in relation to s34: The judge should therefore direct the jury that the person characteristic and circumstances of the Accused should be taken into account.

The Jury should take into account the circumstances in which the advice was given and personality of the Accused for deciding the real reason for remaining silent. The jury will have to consider whether it was the advice which was the case of his silence or whether there was any other reason. Note: The Jury should not be concerned with the correctness of the advice but with the impact of the advice on the Accused. There are six criteria which must be satisfied before an adverse inference can be drawn from an accused’s silence: 1. There must be proceedings against the person for an offence; 2. The failure to mention a relevant fact must have occurred pre-charge or on charge; 3. The failure must have occurred whilst the accused was being interviewed under caution; 4. The questioning must have been directed at trying to discover whether and by whom an offence was committed; 5. The failure of the accused must have been to mention a fact relied on in their defence to those proceedings; 6. The failure must have been to have failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned.

R v Bowden:

Where the Accused or his solicitor had given evidence on not just the advice having been given but also the reason for the advice, the Accused voluntarily withdrew the veil of privilege. Therefore, the Accused could be cross-examined on that advice.

3) R v Laezou (2006): The court makes a distinction between 2 situations:  Where a recent allegation has been made against the Accused that left him with no alternative but to disclose what was said, this will not result in a waiver privilege. 

Where the Accused voluntarily disclose the reasons for legal advice, this would amount a waiver and expose the Accused to cross-examine because the court would want to understand the context

 Who must conduct the questioning?: Section 34(1) refers to a constable but this s34(1) also applies to persons (other than constable) charged with the duty of investigation offences. Direction to Jury: The jury would be given a Petkar direction following the case of Petkar as follows: a) A suspect is not bound to answer police questions b) An inference from silence cannot prove guilty on its own c) The prosecution must have established a case to answer. d) It is for the jury to decide whether it was reasonable for the Accused to have mentioned that fact in his defence earlier e) The jury can only draw inferences only if it is satisfied that the Accused remains silent because he was guilty of the offence.

In Petkar as well as the case of Chenia (2003), an appeal against conviction on ground of misdirection or failure to direct the jury fully as per the guidelines of Cowan, will not necessarily succeed if the trial is substantially fair. When look globally, the court sees that there has been unfairness that there has been misdirection.

R v Knight (2004):

An important case on the meaning of responding to police questions is R v Knight (2004), which establishes that a prepared written statement given to police at interview, and from which he did not depart at trial, meant that s34 did not apply. The Accused was charged with indecently assaulting a girl. During formal questioning, his solicitor read out a prepared statement which exactly corresponded with the Accused defence at trial. However, the Accused declined to answer questions. The trial judge allowed the jury to draw adverse inferences but on appeal the drawing of adverse inferences should not have been allowed because relevant facts were mentioned other than indirect response to question put to him. Thus, if relevant facts are given in a prepared statement the effect of s34 is bypassed/ avoided. The CoA in R v Knight (2004)observed that the fact that the Accused received legal advised not to disclose certain facts, does not confer on him any immunity from having an adverse inference drawn from his failure to mention facts on which he later relies if he could reasonably have been expected to respond or mention them at the time of interview.

Mc Garry (1999): The COA stated that where the judge is of opinion that there is no evidence, on which the jury properly conclude that the Accused fails to mention the fact that relies on his defence and accordingly, rules that adverse inference can be drawn against the Accused under s34, then it is mandatory/ obligatory that the judge direct the jury clearly that no adverse inference should be drawn. In the present case of Mc Carry, because the trial judge here had not only failed to give the jury the required direction but had given them direction from which there was a danger that they could draw an adverse inference.The conviction was quashed. In McGarry(1999),it was noted that ‘a jury, without such guidance, may treat silence as probative of guilt.’ It has, however, been suggested that the McGarrydirection may do harm by drawing attention to the accused’s failure to answer questions, so that the failure to give the direction may be a benefit.

Consider s34 & s35: Right of silence to the Accused is consistent with Article 6 of ECHR 1950 -> Right to a fair Trial.

Number of hurdles: using silence against the Accused. Comply with one requirement: s34(2A) – opportunity to consult a solicitor. In Wheeler [2008], the Court of Appeal held that a trial judge had been wrong to direct the jury that they could draw inferences under s.34 in relation to facts that were not in dispute at trial. Where we have a person who is mentally unfit, we cannot invoke s35. The jury will not allow drawing the adverse inference. Drawing adverse inference is not automatic if the Accused raised the right of silence. What appear to be in conflict with Article 6: case Brown v Scot – Right to silence comes under right to fair trial. Before a jury is allowed to draw adverse inference, they must be directed by the judge and the leading case is R v Cowan (1996).

R v Condron (1997): Fact: Solicitor advised his client to refuse to answer question in an interview on the ground that his client, a drug addict was experiencing withdrawal syndromes. However, doctors who examined the Accused though otherwise. this is the contrary The Accused was being interviewed for a suspect offence of supplying drug. At the trial the Accused relied on facts which they could have told the police at the time of interview. The effect of legal advice on silence was considered in Condron (1997). So, the Accused argued that no inference should have been drawn against him Held: In this case, it was stated that the fact that the Accused had relied on legal advice to remain silent was not in itself a reason for holdingan adverse inference should not be drawn or preventingthe drawing of an adverse inference. Being silent on legal advice, nevertheless the jury must be directed in term of Cowan’s principlein particular to consider the reason given by Accused holding silence. If the jury is satisfied that the Accused can keep silence on legal advice, then they would be entitled to consider that the Accused was trying to cover a hopeless case against police questions but were acting reasonably. Because the judge had failed to direct the jury on this point, it was a valid ground on appeal. In Bets and Hall (2001), the Court of Appeal said that, where silence at an interview is said to be on legal advice, the judge must make it plain to the jury that they can draw inferences only if they are sure that the failure to mention facts subsequently relied on was because the defendant had not at that stage any explanation to offer, or none that he believed would

stand up to questioning or investigation, so that the solicitor’s advice was no more than a convenient shield behind which to hide.

R v Cowan: (Direction to Jury) S1(1) of Criminal Evidence Act (CEA) 1898: The Accused is on no obligation to testify that is there is no compulsion to talk. S1 of Criminal Evidence Act (CEA) 1898 preserve the right to silence S34 and s35 of CJPOA 1994 provides that in appropriate circumstances in determining the Accused’s guilt, court may draw such inferences as appear proper from the Accused failure to testify (give evidence) or refuse them without any reason to answer the question. S34 – Inference of the Accused’s silence S34(1)(a) – Out of court S34(2)(d) – Right of silence is no longer absolute. The jury will be allowed to prove adverse inference from the offence charged. S35 - Inference of the Accused’s silence. Silence on its own cannot make a prosecution’s case but there must be evidence to support it. It may not be absolute but see the qualification of s34(2A), which provided that the Accused has been given to consult a solicitor prior to being questioned. Generally under common law, a Defendant’s silence when being questioned by the police did not indicate an acceptance or informal admission that incriminated the Defendant of the crime they were alleged to have committed. Unless the jury had been directed with the guidelines set out in the case of R v Cowan, the Accused may contest the proprietary of drawing adverse inferences. Thus the judge must give the jury the following directions before allowing the jury to draw any inferences. Therefore the jury must be directed by the judge in terms of R v Cowan. Failure to do so is a ground for appeal.

Jury Direction - R v Cowans: 1) The Accused has a right to give evidence but he has been warned that a failure to do so may lead the jury to draw inference.

2) A failure to give evidence cannot on its own prove guilt, but the jury can assist whether the Accused is guilty. 3) If a reason for not testifying is advanced, the jury should consider it and if it accepts the reason, it cannot draw any inferences from silence. If it rejects the reason, then the jury may draw inference.

Cowan Direction – According to which the jury must be directed: 

The burden of proof remains on the prosecution.

 

The Accused is entitled to remain silent. An inference from failure to testify alone cannot prove guilt. (There has to be other evidence) The jury must be satisfied that the prosecution has established the case against the Accused before drawing any inferences on his side or form his silence. If the Jury is of the view that the Accused is silent because he has no real answer or it is one that would not stand the test of cross examination, they (the jury) may then draw an adverse inference.

 

R v Birchall: It is important that the jury be told clearly that it should consider the evidence against the Accused before turning to consider the effect of the failure to testify. The direction does not need to be spell out to the jury in exact term as long as the effect of the judges summing up is to properly direct the jury to consider the evid...