Right to Silence Essay - Grade: A PDF

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Right to Silence Essay - Grade: A...

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TOPIC: EVIDENCE – RIGHT TO SILENCE Right to Silence Essay – s.34 and s.35 “The law governing inferences from silence is deeply unjust; sections 34–37 of the Criminal Justice and Public Order Act 1994 should be immediately repealed as there is little, if anything, to commend them. Inferences should never be drawn from a defendant’s exercise of their right to silence.” Discuss.

Opening statement A wise man once said silence is the true friend who never betrays (Confucius). The above statement, today does not seem to hold water in light of case law interpretation of s.34 and s.35 of CJPOA 1994. These sections describe a right known as right to silence. This is a misnomer (inaccurate label). Silence is not a true friend but a true enemy.

Intro At common law, no inference was permitted from the exercise of the right to silence in the phase of questioning by the police. This right to silence, according to Ian Dennis (2007) is a derivative application of the privilege of self-incrimination (it is an evidential immunity for exercising silence). By section 34, a court may draw such inferences as appear proper from evidence that the defendant failed, on being questioned or on being charged, to mention any fact relied on in his defence. If it was a fact which in the circumstances existing at the time, he could have reasonably have been expected to mention. This section is drafted restrictively or narrowly. Not all no-comment interviews will lead to an adverse inference being drawn. The defendant must rely on the unmentioned fact during the trial. [Unmentioned fact is normally a defence (must keep silent, and then raise up the relevant fact in trial)] The statute has also been interpreted narrowly. This is evident in the words of Lord Bingham in R v Bowden where he said “proper effect must of course be given to the CJPOA provisions. But since they restrict rights recognized at common law… they should not be construed more widely than the act requires.”

Body 1. Explain s.34 in more details – how it applies 2. Silence based on legal advice (main) 3. Warning attached to s.34

1. Explain s.34 in more details – how it applies 1

TOPIC: EVIDENCE – RIGHT TO SILENCE Requirements / Conditions to fulfill in order to apply it / Description

(i) Defendant must have been silent when interviewed or upon being charged His silence can be at any of the stages above – R v Dervish: where a suspect gave a no comment reply during the interview. CA held that drawing adverse inference from silence can be at either stage or each stage. S.34 has a very unique objective, i.e. to encourage speedy disclosure of a genuine defence and to permit adverse inference to be drawn where a defence has been fabricated later – R v Lowe (2003)

(ii) The defendant must have failed to mention some fact relied on in his defence R v Essa (Daha) (2009) – CA emphasized that the significance of this section does not lie in the silence at the interview, but rather in the reliance at trial. Definition of “fact” - R v Webber (2004) Lord Bingham – “Fact” should be given a broad meaning and not a narrow or pedantic (exact) meaning. - Milford (2001) – “Fact” means something that is actually the case. (Poor definition) Fact must be distinguished from a theory or speculation. - Nickolson (1998) – F: Defendants in the trial introduced his theory on how his semen got onto victim’s dress. Held: It is mere theory, not fact.

Reliance of the fact has been explained by the case of Webber Defendant gives evidence, either personally or when counsel acts on his instructions and puts a specific and positive case to the witness. (This is to plant in the jury’s mind the defendant’s version of the events). If Parliament intended s.34 to only apply where the defendant personally gives evidence, the draftsman should have made that clear. As it is, the word “relied on his defence” suggest a wider import. [Crux of problem question]

Submitting a prepared statement through the counsel during the interview is not an inevitable antidote to adverse inference. (Laws LJ in R v Knight (2003)) Such prepared statement does not provide automatic immunity against adverse inference. The prepared statement can be questioned, i.e. it may be incomplete or inconsistent with what the defendant says in court later. c/f Turner (2003) Scottbaker LJ suggested that even if there are discrepancies between the prepared statement and the evidence during trial, adverse inference must not be drawn. 2

TOPIC: EVIDENCE – RIGHT TO SILENCE

Circumstance The unmentioned fact must be one which in the circumstances existing at the time, the defendant could reasonably have been expected to mention when questioned Argent (1996) Lord Bingham – The courts must take into account all the circumstances existing then (this is to consider the defendant’s actual qualities and knowledge). The factors include: (i) The time of day (ii) Age and experience of the suspect (iii) Mental capacity / physical (iv) Intoxication (v) Tiredness (vi) Personality (vii) Legal advice

2. Effect of legal advice on silence (main) Condron v UK (2000) ECtHR – Silence based on legal advice must be given appropriate weight by the domestic courts. Argent (Lord Bingham) – Legal advice is a relevant issue when it comes to a suspect’s silence. It can affect the position of whether the suspect was expected to mention a fact. According to Condron (UK case) (1997) – a suspect is not entitled to simply argue that his silence was due to legal advice. He has to go on further and provide reasons for the advice. This will allow the prosecution to cross examine the witness to discover whether there were any tactical reason for the advice. According to Cooper’s Legal Advice and Pre-Trial Silence (2006) an issue that has been troubling the courts for many years is the extent to which adverse inference may be drawn when the suspect acted on legal advice. (It is a controversial area – there are 2 school of thought – genuine reliance or not?)

1st school of thought: Genuine reliance is enough R v Betts & Hall (Kay LJ) (2000) – “Silence at the interview is alleged to be on legal advice, the judge must make it clear to the jury that they can draw inference only if they are sure that the failure to mention facts subsequently relied on was because the defendant had not at that stage of explanation, to offer or none that he believe could stand up to questioning…” – If suspect said they relied genuinely – cannot draw inference.

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TOPIC: EVIDENCE – RIGHT TO SILENCE If adverse inference is drawn, s.34 will be incompatible with Art 6(1) ECHR. Robinson (2003) (CA) – CA favours the approach in Betts and Hall Beckles v UK (2004) - “…it notes in this connection that the case law of the domestic courts in this area has steadily evolved and that the CA in Betts & Hall has recently noted the importance of giving due weight on the accused’s reliance on legal advice”

2nd school of thought: (Preferable) R v Howell (2005) (Laws LJ) – the approach by Betts & Hall is not acceptable – “… there must always be soundly based objective reason for silence, sufficiently cogent and telling to weigh in the balance against the public interest.” – genuine reliance is not enough R v Knight (2003) CA – supported Howell Beckles (2002) CA – It is not sufficient to say that he genuinely rely on the advice. This is because it may not have been reasonable for him to rely on it. Reasonableness remains for the jury to determine. If he acted unreasonably, adverse inference can still be drawn. Existence of good reason for the advice would support whether the reliance was reasonable. Crondon (1997) - Lord Bingham already stated the same

3. Direction / Warning attached to s.34 Should the jury draw adverse inference or not? S.34(2) – The court or jury may draw such inference from the failure as appear proper What inference would appear proper to be drawn is a question for the jury. – Argent (Lord Bingham) – “… Judge should warn jury against drawing inference, but the judge must always bear in mind that the jury is the tribunal of fact and that Parliament in its wisdom has seen fit to enact this section.” Adverse inference, if drawn, should be during cross examination to allow the defendant to deal with it. (Turner (2003)) The direction to the jury can be found in various cases, such as Gill (2001), Pethkar & Farquhar, Argent. The Argent warning is as follows: (Note: Cowan warning is for s.35 only) (i) The unmentioned fact must be identified (ii) The inference might be drawn must also be identified (iii) The jury should be told if an inference is drawn, they should not convict wholly or mainly on the strength of it

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TOPIC: EVIDENCE – RIGHT TO SILENCE (iv) The jury should be told that an inference should be drawn only if you think it is a fair and proper conclusion (v) An inference should only be drawn if there is no other sensible explanation for the failure crux of the warning – for problem Q] (vi) An inference should only be drawn provided the prosecution case is so strong that it clearly calls for an answer by him (vii) Only after a jury has consider his explanation for the failure, then they can conclude that there is no other sensible explanation (viii) A special direction should be given where the explanation of silence was based on lawyer’s advice (can be found in Pethkar & Farquhar)

4. Compatibility of s.34 and ECHR - Article 6(1) (a) As long as there is a fair balance between the suspect’s right to remain silent and drawing inference, s.34 is convenion compliant – Murray v UK (b) Provided a proper warning was administered, s.34 will be convention compliant – Beckles v UK ; Condron v UK (c) Beckles v UK (Lord Bingham) - “… the trial judge failed to give an appropriate weight in his direction to the applicant’s explanation for his silence and let the jury at liberty to draw an adverse inference…”

Conclusion The law is settled for now. The jury has a clear direction on how to evaluate the defendant’s silence (R v Beckles). But it remains uncertain on how the law would impact a defendant at a practical level. Even if a lawyer’s advice is completely absurd, the reasonable cause for a suspect, assuming that he is unskilled in the perplexities of criminal evidence, it still to comply with the instructions. Perhaps, to cure this problem it is up to the law society to formulate guidelines for its members to apply in relation to advising clients to remain silent. This is desirable so as to minimize the risk of legal advices incriminating the defendant. This approach perhaps will then codify the same of the wise man that silence is indeed a true friend…

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