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.

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.

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

LPP paramount importance
Cannot intrude upon privilege through questions without waiver
D entitled to open up communication w/ lawyer, this would be waiver
D giving evidence of communications between him and solicitor does not waive privilege entirely and generally.
If D says he gave the solicitor the account now offered, this usually means he can be cross-examined on what exactly he said and on that topic.
D who adduces evidence that he was advised by lawyer not to answer questions but does not say anything else does not waive privilege
D who adduces evidence of content, or reasons for, such advice does waive privilege – at least to extent of opening up questions which properly go to whether such reason can be true explanation for silence
Rules as to privilege and waiver are the same whether it is the Crown or a co-accused who challenges D.

Circumventing s.34

Pre-prepared statements

Method by which defence gets around s.34
Ali(Safraz): A and others charged w offences arising from assault. A used alibi and declined to answer Qs at interview but handed a pre-prepared statement which stated he had been at home sleeping.
- Trial judge said could draw adverse inferences
- Court held essential facts here had been disclosed in the statement, so there was no s.34 failure to mention any fact relied upon by D in his defence.
Ali upholds purpose to guard against late concoction and encourage early disclosure but seems to sidestep the issue that D has been reluctant to expose himself to questioning on a particular topic.
Some doubt post-Ali as to whether the jury could draw AI where they thought silence was due to unwillingness to be subjected to further questioning.
Knight: CA reaffirmed the Ali approach – the aim of s34(!)(a) does not distinctly include cross-exam of suspect by police upon his account over and above disclosure itself.
- Munday would agree – statute would likely have expressed clearly otherwise and D can be cross-examined in court anyway.

Declining to be questioned

Johnson and Hind: Suspect refused to be questioned when in custody – didn’t leave cell.
- Prosecution said that s.34 needed a broad reading to prevent suspects circumventing the requirement of early disclosure of their account of events.
- But CA said the language of the statute couldn’t be ignored – correct for trial judge to rule that Hs refusal to leave his cell to be questioned meant silence regarding facts he later relied on couldn’t form basis of AI
  - Pointed so s.34(1)(b) to ensure s34 not undermined

Only apply s.34 to facts upon which D subsequently relies on at trial

Nickolson – N mentioned explanation for semen being on 9 year old girls’ nightdress which he hadn’t mentioned at interview. Should not have invited jury to draw AI because he was just being invited to propose a theory/possibility/speculate, it was not a fact.
What will be a fact?
- Milford – particular truth known by actual observation or authentic testimony, rather than inference, speculation etc.
Who needs to have asserted the fact?
- Ashton, Lyons and Webber: situations in which co-D gave evidence which was adopted in the accused’s closing speech, and one where suggestions were made to a witness in cross-exam which were not accepted by the witness.
  - HL said ‘fact’ could include something put by a defendant to a witness, even if the suggestion is not accepted by the witness.
  - “Fact” emphasised to be wide – anything put forward by counsel as part of the defence case. Does not include where defence is merely probing prosecution case.
The fact must be contested by the prosecution
- Wisdom and Sinclair: S had not...

#10512 - Right To Silence - Criminal Procedure and Evidence

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