Silence Notes

Silence

Intro, The Right to silence

• Traditionally an accused person has been accorded a ‘right to silence’ (aka privileged against self-incrimination). Not specifically mentioned in Art 6 ECHR, but they constitute generally recognized international standards of at heart of a fair procedure under Art 6. Not an absolute right.

• Aspects of the right to silence recognized in domestic law:

  • Accused is not a compellable witness at trial;

  • Police under no general duty to assist the police with their inquiries.

• YJCEA 1999, s59 and Sch 3: responding to Saunders v UK by restricting the use which can be made of evidence obtained under compulsion under a variety of statutory provisions including the Companies Act s343.

• At common law, previously the right to silence was supplemented by a further right no inferences were generally permitted to be drawn from the exercise of right to silence, either by a suspect under investigation or by an abused at his trial

• Prior to 1994: no evidential significance could be attached to accused’s decision to exercise right to silence; Ds had absolute right to say nothing; right to sentence in ECHR an essential part of our justice system.

• That right (no inferences from silence) has been eroded by ss34-38 CJPO 1994: specifies circumstances in which adverse inferences may be drawn from the exercise of the primary right to remain silent.

  • Where the statutory scheme does not apply, the common-law rule still applies.

  • Where the statutory schemes applies court is under obligation to ensure the jury are properly directed re the limited inferences which can be drawn (Condron v UK). ‘particular caution’ required by court before invoking the accused’s silence again him.

  • Whether the statutory scheme fulfils this requirement is a matter that is likely to continue to figure in criminal appeals.

What is an inference?

• An “inference” = a ‘common sense conclusion’.

  • An “adverse inference” = a common sense conclusion that is adverse to the interests of a party in proceedings.

• In this ch only dealing with one kind of inference inferences from accused’s silence.

• Will consider the following:

  1. Silence in interview

  2. Silence on arrest whilst in possession of incriminating objects/substances

  3. Silence on arrest at scene of crime

  4. Silence at trial

• And evidential value of D’s lies

(a) SILENCE AT INTERVIEW, s34 CJPOA (failure to reveal facts afterwards relied upon in court)

s34:

1. Where, in any proceedings against a person for an offence, evidence is given that

the accused—

1. at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

2. on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact; or

3. at any time after being charged with the offence, on being questioned under section 22 of the Counter-Terrorism Act 2008 (post-charge questioning), failed to mention any such fact,

being a fact which in the circumstances existing at the time the accused could REASONABLY have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.

(2) Where this subsection applies—

• (a) [repealed]

• (b) a judge, in deciding whether to grant an [application for dismissal] application made by the accused under paragraph 2 of schedule 3 to the Crime and Disorder Act 1998;

• (c) the court, in determining whether there is a case to answer; and

• (d) the court or jury, in determining whether the accused is guilty of the offence charged

may draw such inferences from the failure or refusal as appear proper.

(2A) Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in subsection (1) above.

(3) Subjection to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.

(4) This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above ‘officially informed’ means informed by a constable or any such person.

(5) This section does not:

• (a) Prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section; or

• (b) preclude the drawing of any inference from any such failure or other reaction of the accused which could properly be drawn apart from this section.

(6) This section does not apply in relation to a failure or refusal which occurred before the commencement of this section.

Notes, s34

• S34 Crim Justice and Public Order Act 1994: where accused withholds a fact when questioned under caution, or when being charged, which he could reasonably be expected to mention; but then presents it at trial adverse inferences may be drawn.

  • Court can draw ‘such inferences as appear proper’.

• Allows tribunal of fact to draw such inferences as appear proper from the accused’s failure to reveal specific facts, provided the conditions are made out and any questions of fact arising thereunder are resolved against the accused.

• Only applies where a particular fact is advanced by the defence which is suspicious by reason of not being put forward at an early opportunity (s34 does not apply simply because the accused has declined to answer questions).

• S34 could also apply to a case where the accused, though he discloses his defence,...

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