Inferences Drawn from a Defendant’s Silence

Criminal Justice and Public Order Act 1994 enables tribunal of fact to draw adverse inferences from a defendant’s failure to respond to questioning.

• Beforehand, privilege against self-incrimination meant the jury would not be directed to consider drawing adverse inferences.

• Provisions of Act (ss34, 36 and 37) proceed on basis that not cooperating w/ investigative authorities is suspicious behaviour.

ECHR Law

• Many English cases have emphasised a need for caution:

  • Webber: HL said should not use statutory provisions as instrument of unfairness and abuse, and to make sure jury directions were carefully framed.

• Strasbourg:

  • Murray v UK: Northern Ireland provisions similar to those under act. Concerned whether M had art6 fair trial given that trial court drew adverse inferences from his silence at the police station.

    • Court rejected that Art 6 was breached and noted that there was strong prosec evidence against M + that judge gave reasoned judgment and explanation of inferences.

    • So might depend on role of inferences in case/whether there is jury

  • Condron v UK: leaving silence to jury is not breach of art6 but is factor to consider in assessing trial’s compatibility.

    • Significant failures in delivering proper directions ‘must be seen as incompatible with the exercise by the defendant of his right to silence’ – this was followed in Beckles v UK.

• Applied in Bristow v Jones: judge gave defective direction as to how to approach drawing adverse inferences under s.34 and CA said that, even though the silence likely played a minor role in decision, the Condron case compelled them to hold it was an irregularity and quash the conviction.

s.58 YJCEA 1999 attempt to make it more compatible: no adverse inferences unless D had opportunity to consult a solicitor first.

Silence Provisions of the Criminal Justice and Public Order Act 1994

s.34: the effect of Ds failure to mention facts when questioned or charged

• Discourages accused from fabricating defence late in the day + encourages speedy disclosure of any real defence or fact.

• Elements

  • 34(1) – Evidence is given that accused did not mention any fact relied on in his defence which, in the circumstances existing at the time, he could reasonably have been expected to mention either:

    • (a) before being charged w/ offence, on being questioned under caution by a constable trying to discover whether or by whom an offence had been committed; or

    • (b) on being charged with the offence or officially informed that he might be prosecuted for it

  • 34(2) – where (1) applies, the court or jury, in determining whether the accused is guilty of the offence, may draw such inferences from the failure as appear proper

  • 34(2a) – above doesn’t apply if D hasn’t had opp to take legal advice

What might D have been reasonably expected to mention?

• D might argue it would have been completely unreasonable to mention something at the relevant time.

  • So not appropriate if prosecution cannot show that D knew the fact or its significance at the time.

  • B (MT) – no AI where B came up with motive for sexual offence allegations at trial which he didn’t mention earlier – could not show he ought reasonably to have known it at interview.

• Or the judge can leave it to the jury to draw an inference + instruct them on how to approach doing so.

  • Can supply circumstantial evidence from time to guide them on whether he should have mentioned – e.g. personal health/state of mind/solicitor

LEGAL ADVICE drawing s34 inference is contingent upon D having been afforded the opp to take legal advice – s.34(2a)

Relevance of legal advice to failure to mention facts

• Often argued that D was simply acting on legal advice – difficult because its reasonable for suspect to comply w/ solicitors advice.

Legal advice that D should stay silent

• Approach outlined in Argent by Lord Bingham:

  • s.34 not concerned w/ appropriateness of advice of solicitor but with the reasonableness of Ds conduct in the circumstances. One of those circumstances is the advice given to D.

  • So legal advice relevant but does not rule out inference entirely.

• Similarly in Daha Essa and Beckles – The question for the jury is whether the facts relied upon were facts he could reasonably have been expected to mention at interview. Genuinely relying on legal advice is relevant but not conclusive.

  • Might still not have been reasonable for him to rely on that advice or the advice may not have been the true explanation for his silence.

• Condron: court mentioned that merely asserting reliance on legal advice is not sufficient in itself for not having mentioned matters relating to defence.

  • To prevent court drawing adverse inference need to show basis or reason for the advice, usually leading to solicitor being called to explain why + Pros cross-examining.

Waiver of legal professional privilege?

• LPP seen as fundamental condition of administration of justice. It attaches to the client, and waiver can occur when a client reveals information communicated under privilege.

• Bowden; waiver occurs when client chooses to…reveal the effect of a communication protected by the privilege – cannot claim privilege for information voluntarily revealed.

  • Here, B omitted until trial to say that it was his mother who paid for holiday he took to Canary Islands 4 days after the robbery he was charged with. At trial B elicited solicitors statement that B should stay silent during cross-exam of a police officer.

  • LPP waived and crown could cross-examine B about what he told solicitor about the holiday.

• If merely trying to rebut the Crown suggestions that his story is made up by calling solicitor to testify that D communicated the facts at an earlier stage, this is not necessarily waiver:

  • Privilege is waived when D or solicitor gives evidence of the actual grounds upon which advice to stay silent was given.

• Seaton propositions in relation to when waiver occurs

1. LPP paramount importance

2. Cannot...

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