#16102 - Silence - BPC Criminal Litigation (formerly BPTC) 2024/2025

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, fails to mention a particular fact that he thereafter relies upon: in such a case there is a discretion whether to give a warning.

  • 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.

• S34(1)-(2):

  • 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.

• IN SUMMARY:

  1. Before charge OR on being charged

  2. Whilst under caution

  3. Whilst being questioned by a police officer

  4. About his suspected involvement in the offence

  5. Fails to mention a fact

  6. That he could reasonably be expected to mention in...