The Criminal Justice and Public Order Act 1994 was hence after going back and forth for quite a long while. Its enforcement was very important in this context as it allowed adverse inferences to be drawn from silence in certain circumstances, which means that the right to silence was significantly restricted since then. Although the right to silence was not completely abolished, it is obvious that it was undermined under sections 34-37 of the Act.
Criminal Justice and Public Order Act 1994
Sections 34 and 35 of the Criminal Justice and Public Order Act 1994 deal with silence under police questioning and adverse inferences from refusal to testify respectively. They provided that adverse inferences could be drawn if ‘appear proper’ ‘in the circumstances where the accused relies at trial on facts not mentioned during interview or declines to testify at court. The prosecution may draw attention to the defendant’s use of silence, as may judges in their summing up to the jury’. The court in R v Cowan further explained this provision, stating that:
‘Section 35 should not be limited to exceptional circumstances. The right to silence was expressly preserved. The prosecution still had to establish a prima facie case first and the defendant could not be convicted on a s.35 adverse inference alone. The standard of proof also remained the same. Section 35(1) gave exceptional circumstances when adverse inferences could not be drawn, which implied that they could be drawn on all other occasions.
The Court gave guidelines concerning directions. These were that; the burden of proof was on the prosecution and the standard of proof was beyond reasonable doubt; the defendant was entitled to remain silent; an adverse inference drawn from the defendant's silence could not prove guilt on its own, but could be regarded as an evidential factor when weighed with the totality of evidence; the jury must be satisfied that a case existed before drawing any inferences from the silence; if the jury concluded that silence was due to the defendant having no answer or none that would bear cross examination, despite any evidence explaining the silence, then they might draw an adverse inference.’
Adverse inferences can only be drawn when there is no reasonable explanation given for remaining silent.
According to the court in R v Argent,
‘the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at that time. The courts should not construe the expression "in the circumstances" restrictively: matters such as time of day, the defendant's age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant. When reference is made to "the accused" attention is directed not to some hypothetical, reasonable accused of ordinary phlegm and fortitude but to the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time. It is for the jury to decide whether the fact (or facts) which the defendant has relied on in his defence in the criminal trial, but which he had not mentioned when questioned under caution before charge by the constable investigating the alleged offence for which the defendant is being tried, is (or are) a fact (or facts) which in the circumstances as they actually existed the actual defendant could reasonably have been expected to mention’.
Sections 36 and 37 of the Criminal Justice and Public Order Act 1994 states that inferences may be drawn when a person is arrested by a constable; ‘that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence’; ‘the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark’; and the accused fails or refuses to so knowing the effect of non-compliance.
Although the right to silence was curtailed by this Act, section 38 still provides some protection to the defendant. Section 38(4) states that a person should not be convicted solely because he remained silent. The burden of proof still lies on the prosecution and a silence will only be one of the factors contributing to a verdict of guilt.
As the right of silence was not abolished in the Act, ‘a suspect can still choose to remain silent both during police interviews and when charged, and a defendant can still choose not to testify in court. However, remaining silent is now a far less attractive option because there is the risk that it may prejudice the defence case.’ This is why under Police and Criminal Evidence Act (PACE) Code C 2008 section 10.5 the caution to be read to a suspect states that 'You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence'.
Statutes that compel people to give evidence
Besides and prior to the enforcement of Criminal Justice and Public Order Act 1994, there are several statutory provisions which also hinder the privilege against self-incrimination and some can even be said to have abolished the right to silence. Here are some of the examples.
Under the Criminal Justice Act 1987, the Director of the Serious Fraud Office ‘may by notice in writing require the person under investigation or any other person to produce at such place as may be specified in the notice and either forthwith or at such time as may be so specified, any specified documents which appear to the Director to relate to any matter relevant to the investigation or any documents of a specified which appear to him so to relate’ and ‘require the person producing them to provide an explanation of any of them’. The court in Smith v Director of the Serious Fraud Office took the view that ‘the power of the Serious Fraud Office as defeating the privilege (against self-incrimination) even after the suspect has been charged, and has also limited the scope of the privilege in civil proceedings so that it is not available where the prosecuting authorities state unequivocally that information revealed in the civil proceedings will not be used in criminal proceedings against the person providing it’.
Under Section 172 of the Road Traffic Act 1988, as amended by section 21 of the Road Traffic Act 1991, ‘where the driver of a vehicle is alleged to be guilty of an offence to which this section applies— the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver’ and ‘a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence’.
Under the Regulation of Investigatory Powers Act 2000, ‘a person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice’. It was justified on the grounds that it is ‘necessary in the interest of national security; for the purpose of preventing or detecting crime; or in the interests of the economic well-being of the United Kingdom’.
European Convention of Human Rights
Although not literally stated in the ECHR, Article 6 (1) of the ECHR in fact includes the privilege against self-incrimination as a fundamental right to a fair trial. This was held by the court in Heaney and McGuinness v Ireland which suggested that ‘the rights invoked by the applicants, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6’.
Bucke’s report suggests that ‘the European Court of Human Rights has held that the inferences from silence provisions do not in themselves breach the European Convention on Human Rights. However, seeking to found a
conviction solely on inferences would be a breach, as would the
drawing of inferences from silence during any period when the
suspect had been denied legal advice’.
According to Fenwick, the curtailment of the right to silence under the Criminal Justice and Public Order Act 1994 ‘had the potential to lead to a breach of Article 6 on the basis that it infringes the presumption of innocence under Article 6(2) and the right to freedom from self-incrimination’.
Conclusion
Although the right to silence is not abolished completely, the right and the privilege against self-incrimination were significantly undermined and curtailed under the Criminal Justice and Public Order Act 1994 alongside with other statutory provisions penalising silence. Moreover, according to the European Court of Human Rights, the right to silence is not an absolute right. Therefore, it can be said that they continue to be part of the English criminal legal system only to a rather small extent.
Bibliography
Books
-
T. Bucke, R. Street and D. Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (London: Home Office, 2000)
-
D. Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: OUP, 2rd ed., 2002)
-
H. Fenwick, Civil Liberties and Human Rights (Oxon: Routledge-Cavendish, 4th ed., 2007)
-
P. Murphy, Blackstone’s Criminal Justice 2007 (Oxford: OUP, 2006)
-
R. Stone, Textbook on Civil Liberties and Human Rights (Oxford: OUP, 8th ed., 2010)
-
S. Worthington, Equity (Oxford: OUP, 2003)
H. Fenwick, Civil Liberties and Human Rights (Oxon: Routledge-Cavendish, 4th ed., 2007) 1234.
T. Bucke, R. Street and D. Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (London: Home Office, 2000) 4.
D. Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: OUP, 2rd ed., 2002) 388.
T. Bucke, R. Street and D. Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (London: Home Office, 2000) 4.
H. Fenwick, Civil Liberties and Human Rights (Oxon: Routledge-Cavendish, 4th ed., 2007) 1237.
T. Bucke, R. Street and D. Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (London: Home Office, 2000) 1.
Criminal Justice Act 1987, s 2 (3).
D. Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: OUP, 2rd ed., 2002) 395.
Road Traffic Act 1991, s 172(2),(3)
The Regulation of Investigatory Powers Act 2000, s 53 (1).
T. Bucke, R. Street and D. Brown, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (London: Home Office, 2000) viii.
H. Fenwick, Civil Liberties and Human Rights (Oxon: Routledge-Cavendish, 4th ed., 2007) 1239.