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Silence Notes

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This is an extract of our Silence document, which we sell as part of our BPTC Criminal Litigation Notes collection written by the top tier of City Law School students.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Criminal Litigation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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:
o Accused is not a compellable witness at trial;
o 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.
o Where the statutory scheme does not apply, the common-law rule still applies.
o 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.
o 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'.
o 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:
a) Silence in interview b) Silence on arrest whilst in possession of incriminating objects/substances c) Silence on arrest at scene of crime d) 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---
(a) 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
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact; or
(c) at any time after being charged with the offence, on being questioned under section 22 of the Counter-Terrorism Act 2008 (postcharge 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 o
(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, s34S34 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, fails to mention a particular fact that he thereafter relies upon: in such a case there is a discretion whether to give a warning. o

Eg, accused immediately disclosed his defence of self-defence; but neglected to mention that he believed his victim was armed with a hammer. CA upheld decision of judge to proceed without giving a direction.


S34 is primarily directed at the mischief of the positive defence following a 'no comment' interview and/or the 'ambush' defence.


Counsel should not complicate trials and summings-up by invoking the section unless the merits of the individual case require it.


Common sense; where the accused has said enough in interview to set up the line of reasoning on which his defence was based, even if some points of detail are missing
-probably better to avoid a direction under s34 (that adverse inferences may be drawn).


To give the direction (that adverse inferences may be drawn) in a case where the accused has put forward no more than a bare denial, would be tantamount to directing that guilt may be inferred simply from the exercise of the right to silence, which is NOT
the purpose of s34.Principal objective of s34: to achieve early disclosure of a suspect's account; to encourage early disclosure of genuine defences; to deter late fabrication of such defences.Adverse inferences consistent with Art 6 right to fair trial :

ECtHR decisions confirm that: the mere fact that a trial judge leaves a jury with the option of drawing an adverse inference from silence in interview is not incompatible with the requirements of a fair trial.


Whether the drawing of adverse inferences infringes Art 6 is a matter to be determined in light of all circumstances of the case, having regard to the situations where inferences may be drawn; the weight attached to them by the national court; and the degree of compulsion inherent in the situation.


Of particular importance: the terms of the judge's direction to the jury on the drawing of adverse inferences.


S34 has given rise to much more difficulty in directing the jury than s35 (failure to testify are trial)


Failure to give a proper direction ? not necessarily a breach of Art 6, nor necessarily renders a conviction unsafe: eg in Chenia, C had received a fair trial, due to strength of the evidence; the fact that his failure to mention relevant facts was not consequence upon legal advice; the clear & accurate direction given on the failure of C to give evidence in the case. ?


Effect of accused's failure to mention facts when questioned or charged:?

(1) where, in any proceedings against a person for an offence, evidence is given that the accused:(a) 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(b) on being charged with the offence or officially informed that he might be prosecuted for it, 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....the court may draw such inferences from the failure as appear proper.

a) Before charge OR on being charged b) Whilst under caution c) Whilst being questioned by a police officer d) About his suspected involvement in the offence e) Fails to mention a fact f)

That he could reasonably be expected to mention in the circumstances

g) Later relies on that fact as part of his defence h) The tribunal of fact can draw any inferences that appear proper.
The inference may be drawn for the purposes of (case to answer; application to dismiss; determining guilt)The inference may be relevant in/drawn re :

1. Court in Determining whether there is a case to answer 2. Judge re determining an application to dismiss charges (in the Crown Court) under para 2 Sch 3 CDA 1998

3. Determining guilt (a court or jury determining whether accused is guilty)
Before charged OR whilst being chargedInference under s34 can only arise from anything the Defendant has failed to mention prior to being charged; OR whilst being charged.Either, inferences either:

WHILST being charged (at the point of charge, s34(1)(b))
Or, a distinct process, s34(1)(a): PRIOR to being charged IF 'on being questioned under caution by a constable'.
'on being questioned under caution by a constable':?

Whilst under CAUTION

The accused must have been questioned under caution (s34(1)(a).


The Caution: 'you do not have to say anything. But it may harm your defence if you do not mention, when questioned, something you later rely on in court. Anything you do say may be given in evidence'.


The caution serves to inform the accused of the effect of s34.


If no caution administered when questioned ? no adverse inference may be drawn from accused's failure to mention the relevant fact.

Whilst being questioned by a constable (about his suspected involvement in an offence)

In a 'no comment' interview, the interviewing officer will continue asking questions of the suspect long after it has been clear that they will answer 'no comment' to everything.


For an inference to be drawn, Prosecution must prove that D failed to answer questions in respect of the offence.


If the police officer does not ask the right questions, Defence could say 'well he wasn't asked about the cannabis found...thus you cannot draw an adverse inference from the fact that he has only just mentioned at court that it belonged to someone else'.


There is no requirement to volunteer the fact in question. o

If no questions have been put (eg If a suspect refuses to leave their cell for interview)
-no inference can be drawn under s34, as they have not been 'questioned'. The jury would be at liberty to drawn their own conclusions as to why D chose not attend the interview when assessing all the circumstances of the case.


However, it does not follow that a fact can only be 'mentioned' in the form of an answer to a question:o

Eg, accused handed over a prepared statement in which the relevant facts were mentioned and this was sufficient to prevent inference, even though he subsequently declined to answer questions.

NB, a 'constable' includes others charged with investigating offences.

Fails to mention a factD must fail to mention a specific fact.Not enough for Prosecution to simply point to a no comment interview; prosecution must specify exactly what fact it is that D failed to mention.If prosecution fail to establish that the accused has failed to mention a fact ? jury should be directed to drawn no inference.Where judge directs jury on basis that s34 applies, the direction should identify the facts relied on: and should not be mixed with other, innocuous, facts from which no inference can be drawn.

Judge may be allowed some latitude in a complex case in not having to list all of the facts which were not mentioned;


But the identification of the specific fact/facts is generally required.Judge should discuss any proposed direction with counsel before closing speeches : discussion with counsel will reduce the risk of mistakes.A fact can be "mentioned" through a PREPARED STATEMENT:

In some cases, A D will choose to put their explanation in a pre-prepared statement which is read out by their solicitor at the start of the hearing;


D will then subsequently answer 'no comment' to further questions.


This method is preferred by many solicitors as it prevents Defendants from further incriminating themselves by answering police questions. o

Where accused, at the relevant time, gives a prepared statement in which certain facts are set out ? it cannot be said that he has 'failed to mention' those facts


The aim of s34 was to encourage a suspect to disclose his factual defence; not to sanction inferences from the accused's failure to respond to questions.


But a prepared statement may be a dangerous device for an innocent accused who later discovers that something significant has been omitted.


Since inconsistencies between the prepared statement and the defence at trial do not necessarily amount to reliance on unmentioned facts, the judge must be particularly careful to pinpoint any fact that might properly be the subject of a s34 direction.


Alternatively, the jury might be directed to regard differences between the prepared statement and the accused's evidence at trial as constituting a previous 'lie', rather than as basis for a s34 direction.

That he could REASONABLY have been expected to mention in the circumstances (facts which should have been mentioned)Adverse inferences only from a fact where the fact is one which, in the circumstances arising at the time, the accused could reasonably have been expected to mention.If the accused gives evidence, his reason for failing to disclose should be explored:

And any explanation advanced by the accused for non-disclosure must be considered in deciding what inferences (if any) should be drawn.


If explanation is accepted as true by the jury, or possibly true -> no adverse inference should be drawn from the failure to mention it.


S34 direction should not be given if accused has not been given an opportunity to deal with the question of why he failed to answer question:


Jury can only draw adverse inference where it concludes that the silence can only sensibly be attributed to D having no answer, or none that would stand up to questioning.Eg if D genuinely believed he had mentioned the fact in interview, then his state of mind in interview was not that of a guilty person withholding information ? any direction given should reflect this.In considering this, court should consider any factors relevant to the accused, such as:

Age, experience, mental capacity, health, sobriety, tiredness and personality.

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