The right of silence long
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:
"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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"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 was entitled to follow that advice without cost.
Since the enactment of s.34 there has been a clear division between two schools of judicial thought concerning the impact of evidence as to legal advice to the suspect to answer no police questions. On the one hand there are those judges who subscribe to the view that juries should be actively discouraged (by suitable "assistance" in the summing-up) from accepting any claim by defendants that in declining to answer police questions they were following legal advice unless the reasons for that advice are explained by the legal representative. This will involve waiving legal professional privilege and will render the reasons liable to scrutiny and comment by the prosecution and judge alike. On the other hand, there are those judges?of the highest authority?who maintain that a bare assertion of having followed legal advice may be significant and may suffice to explain the defendant's silence.
The division of opinion between those judges who believe that juries should be discouraged from accepting at face value any claim by defendants that in not answering police questions they were acting on legal advice and those who subscribe to the view that a bare assertion can have validity without necessarily being explained and ought not to be disparaged. The high watermark of decisions representing the former view is Howell9 which Laws L.J. said:
". . . there must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police. Solicitors bearing the important responsibility of giving advice to suspects at police station must always bear that in mind."
Thus, observed the court, the absence of a written statement from the complainant would not be a good reason for silence even if a solicitor so advised silence; nor is the possibility that the complainant might not pursue the complaint a good reason, nor a belief by the solicitor that the suspect will be charged whatever he says. The kind of circumstance which may most likely justify silence will be such matters as the suspect's condition, or his inability genuinely to recollect events without reference to documentation, or communication with others who may be able to assist his recollection. However, it is argued that the views of the CA as to what may or may not constitute good reasons cannot possibly bind the tribunal of fact and it is clearly not the case that a judge may direct the jury that any given reason is not, as a matter of law, a reason for not drawing an adverse inference. It is suggested that if advice to be silent is acted on, the decision makes it that much more likely, that an adverse inference will be drawn. Laws LJ side stepped the decision in Betts v Hall and suggested that the court got it wrong.
Brown10 views Howell as evidence of a "wing of judicial thought that follows the policy of government in the future of criminal justice: a policy which is not assertive of suspects' rights but prefers a more aggressive inquisitorial approach to suspects." In Howell the court apparently regarded advice to be silence as not reasonable where the victim of a serious assault was still in hospital at the time of the suspect's interview and had not made a witness statement. Yet, Brown observes, there are several factors which make it difficult for a solicitor to give advice, and equally for a suspect to decide whether to answer questions, before the prosecution have any admissible evidence.
Firstly, an allegation put to a suspect in an interview by a police officer who is not in possession of a statement from the complainant is likely to be imperfect. There may be a natural tendency for the officer not to mention the low points or weaknesses of the allegation. Without a statement there is no way of checking this. It is quite probable that the officer conducting the interview will not have received the allegation first hand from the complainant, but may instead have received it second or third hand.
The form in which the allegation is put in interview may therefore be incomplete and/or inaccurate. It is in everyone's interest that the officer asking the questions has seen a signed statement which, if fairly disclosed, will give the police and the suspect a full and reliable picture of the evidence, that may be called against the defendant. A witness's first, formal, signed statement may be quite different in content from the allegation first made orally or in draft to the police. Solicitors are likely to encounter genuine difficulties if they are required to give constructive advice about s.34 to clients in the absence of any evidence and having to reply on inadequate information.11 The defendant's assertion that he was following legal advice to stay silent (with or without an explanation of the reasons for the advice) will generally be incapable of preventing a s.34 direction as a matter of law.
In Beckles,12 Lord Wolfe C.J.13 expressed the conundrum facing the courts:
"Where the reason put forward by a defendant for not answering questions is that he is acting on legal advice, the position is singularly delicate. On the one hand the Courts have not unreasonably wanted to avoid defendants driving a coach and horses through section 34 and by so doing defeating the statutory objective. Such an explanation is very easy for a defence to advance and difficult to investigate because of legal professional privilege. On the other hand, it is of the greatest importance that defendants should be able to be advised by their lawyer without their having to reveal the terms of that advice if they act in accordance with that advice."
Lord Woolf CJ, held that in cases concerning legal advice, the ultimate question for the jury under s. 34 is whether the facts relied on at trial were facts the defendant could reasonably have been expected to mention at interview. A defendant may genuinely rely on such advise bit it may not be reasonable for him to do so.
In Beckles the defence had not adduced the reasons why the Appellant had been advised by his solicitor to answer no questions but Lord Wolfe C.J., giving the judgment of the Court of Appeal, conjectured that the advice "might have been justified because the Appellant was unaware of the evidence on which the prosecution were relying." This may be regarded as a succinct statement of the objections expressed by Brown.
In Knight,14 per Laws LJ, it was held, approving Howell as still good law, that the fact that a solicitor had provided no reasons or bad reasons as to why the accused should stay silent did not necessarily mean that an adverse inference should be drawn, as the defendant might be distinctly weak and vulnerable so that it was not reasonable to expect him to give an account to the police; it was a matter for the jury. However, it was also stated that pre-Howell cases are not inconsistent with Howell. No where is it decided that the mere giving of advice to remain silent results in immunity form adverse inferences.
In R v V 15 the appellant made no comment in interview on the advice of his solicitor who gave at trial explained that he had given that advice because of the appellant's state of health, the lack of police disclosure of the complainants' evidence (allegations by his daughter an niece of sexual abuse going back 25 years) and the appellant's inability to understand the caution. In evidence the appellant confirmed he had not understood the consequences of silence. Although these reasons would clearly be recognised entirely respectable it is not surprising that it was held that the judge had been entitled to leave it open to the jury to draw an adverse inference if they thought it appropriate to do so.
In Hoarce & Pierce,16 Auld LJ said that the issue was whether, a defendant has remained silent on legal advice, the test for the jury is subjective or objective when deciding whether it is reasonable to expect the accused to have mentioned relevant facts. In other words, is it sufficient to preclude an adverse inference that the accused genuinely relied on legal advice as a reason for silence. Having reviewed the relevant case Auld LJ decided that it is an objective test. The decision in the case is in line with Howell, and means that legal advice may not prevent inferences form being draw even if the lawyer genuinely believes that there are valid reasons for the advice and the client genuinely relies on that advice.
The right to silence has not been completely lost, nevertheless the issue of principle remains as to whether an accused should be placed in a situation where he is effectively required to contribute to the weight of the case against him by being subjected to cross-examination or to an adverse inference. The Royal Commission on Criminal Justice17 thought it wrong in principle, given that the burden of proof lies on the prosecution, that defendants should be exposed to comment that failure to enter the witness box corroborates the prosecution case.
The defence might seek to argue that the silence was a reasonable response to police questions because it was exercised on legal advice, but the CA decisions on this issue make it unlikely that the argument would succeed. It is argued that the defendant effectively has to now prove his/her innocence by accounting for his/her silence. Thus it is argued that in practice if not in law, this has shifted the burden of proof.. The Criminal Justice Process can be a very daunting experience for vulnerable defendants, or those that have never being involved. Vulnerable suspects may respond to police questions and unwittingly incriminate themselves In majority of cases clients are more than likely to follow the legal advice given to them by their solicitor. Suspects may well be advised not to answer some or all of the questions asked during the police interview, and may also be advised not to testify at trial. Can it be concluded that acting upon such advice it unreasonable? How can exercising a right (right to remain silent) conferred by the law itself be unreasonable? In having to account for their silence, defendants are thus viewed as having to demonstrate their innocence, and being subjected to adverse inferences even if the advice is based on legal advice. It is thus concluded that the statement does not accord with the law relating to silence on legal advice.
WORD COUNT - 2,510
Royal Commission for Criminal Justice 1981. 1993
2 Murray (John) v UK (1996) 22 EHRR 29
3 [1997] 2 Cr.App.R. 27, at p.37
4 (at para. 61)
5 [1997] 1 Cr App R 185
6 [1997] 2 Cr App R 27
7 [1997] Crim LR 449
8 [2001] EWCA Crim 224, (paras 53-54)
9 [2003] Crim.L.R. 405; [2003] EWCA Crim 1
0 Robert Brown, "The Benign Continuum" [2003] 1 Archbold News
1 Anthony Edwards, "Inferences from silence?the significance of legal advice," [2003] 28 LSG
2 [2004]EWCA Crim 2766,
3 at para. 43
4 [2003] EWCA Crim 1977
5 [2005] 149 S.J. 301, C.A. (judgment 3 March 2005)
6 R v Hoare [2004] EWCA Crim 784
7 The Royal Commission on Criminal Justice [1993], Cm 2263 at para 25
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