The right of silence long

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The right of silence long considered the most fundamental right of a suspect, was curtailed by the Criminal Justice and Public Order Act 1994 . The evidence provisions of the Criminal Justice and Public Order act 1994 (CJPOA), were some of the most contentious and hotly debated.1 The Act changes the rules that govern how a court should deal with the silence of a suspect or a accused and in doing so, potentially makes inroads into an individuals right regarded as fundamental.

Since the introduction of the CJPOA 1994, the failure by an accused to mention facts during police questioning, which are later relied on at trial, or failure to testify at trial, may now be the subject of prosecution comment at trial. The court may draw appropriate inferences form any such failure. Inferences cannot in themselves provide sufficient evidence for a conviction: a prima facie case must first be established form other evidence. But inferences may be used to reinforce the prosecution case or undermine that of the defence.

The crux of the provisions is that the accused's failure to mention facts during police questioning, which are later relied upon at trial, or failure to testify at trial, may be the subject adverse inferences.

The European Court of Human Rights has held that the inferences from silence provisions do not in themselves breach European Convention on Human Rights. However, seeking to found a conviction solely on inferences would be a breach, as would the drawing of inferences form silence during any period when the suspect had been denied legal advice.2

The statement by Lord Bingham CJ in Argent,3 that the giving of legal advice to remain silent is a "very relevant consideration" in applying s.34, coheres with the statement by the E.C.H.R. in Condron v UK4 that

"the fact of legal advice [to be silent] should be given appropriate weight as there may be good reason for that advice" (emphasis supplied).

Legal advice to remain silent does not necessarily mean that the accused's failure to mention facts later relied on at court is reasonable and that no inferences can be drawn. It is only one factor in a wider assessment of whether silence was reasonable; in particular it is important to consider why the suspect accepted the legal advice.

In Condron,5 the Court of Appeal (CA) held that the mere fact that such advice had been given could not prevent the drawing of adverse inferences under s. 34 CJPOA 1994. The difficulty this created for the accuser's lawyer was recognised in Argent,6 but he CA stated that whilst the legal advice given is a circumstance to be considered by the jury, it cannot preclude consideration by the jury of the issue which Parliament has left to the jury to determine ( i.e., whether adverse inferences may be drawn. Furthermore, in Roble,7 the CA observed that legal advice to remain silent was not in itself likely to be regarded as a sufficient reason for not mentioning facts relevant to he defence. The defence would generally need to explain the reason for the advice.

Where the defence offer no reasons behind the legal advice to be silent and the jury have only the bare fact of the advice to go on, it may be impossible for them to decide whether the silence was attributable to the advice or to the fact that the defendant had no answer. However, even where the defence have adduced the reasons why the defendant was given the advice and the defendant has purported in evidence to state that he took the advice for the reasons given, there remains the difficult question for the jury as to whether he was genuinely acting on the advice or whether, not having an innocent explanation, he was using the advice as a pretext for covering up for that fact. The reasonableness or otherwise of the advice may be relevant in assessing whether the defendant was genuine in accepting the advice but is clearly not decisive in determining that question. The meaning of the distinction between "genuine" adoption of advice and opportunistic use of it to cloak the absence of an innocent account was aptly stated by Kay L.J. in the following passages from his judgment in Betts and Hall 8:
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"In the light of the judgment in Condron v United Kingdom it is not the quality of the decision [not to answer questions] but the genuineness of the decision that matters. If it is a plausible explanation that the reasons for not mentioning facts is that the particular appellant acted on the advice of his solicitor and not because he had no, or no satisfactory, answer to give, then no inference can be drawn."

The case allowed for the averting of an inference if the defendant, having been advised to say nothing, genuinely believed that he ...

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