Impacting the Right to Silence

Introduction

The law relating to adverse inference is provided under the Criminal Justice and Public Order Act (CJPOA) 1994. Adverse inference is statutorily allowed under Section 34 of CJPOA when a suspect is silent when he is questioned under caution before the charge and he subsequently relies upon a relevant fact at Court, which he could reasonably have been expected to mention when he was questioned. This law provides the court to draw adverse inference only when the condition provided under Section 34 is met. In this context, this essay will assess whether, how or the extent of this law affects the law of confession evidence especially the defence rights. This essay proposes that the adverse inference law does not undermine defence rights to remain silent.

Right to silence and justifiable extent of adverse inference

The right to remain silent and confession evidence are intimately related. A confession completely waives the right to silence. The right to silence is the right to avoid being drawn into making admission that are damaging and possibly false in the policy custody or in the court to escape being subject to adverse comment at trial. The Royal Assent, November 3, 1994 curtailed this right to silence. Before this curtailment, the right to silence prohibits inference when the accused failed to mention some fact when questioned but relied on it in his defence that the subsequent explanation is untrue. His failure to testify on his own behalf may not be subjected to any comment by the prosecution. Failure to testify cannot be an evidence of guilt. However, exercise of the right to silence electing not to answer questions in interview or at the trial may carry consequences. In a criminal proceeding, an accused’s silence may also be adversely inferred. Thus, the right of silence is not absolute and whether or not an inference could be drawn depends on the circumstance of the case.

CJPOA provides for certain circumstances that prohibits adverse inference and thereby protecting the right to silence. Right to silence is a defence right. This right is protected by prohibiting adverse inference when the accused is at an authorised place of detention until he is allowed an opportunity to consult a lawyer before being question, charged or informed in a proceeding (Section 2A of CJPOA). This right is also protected by prohibiting adverse inference at trial if his guilt is not the issue, his mental or physical condition is considered by the court to be undesirable for the accused to give evidence, or he will give evidence (S35(1)(a)-(b)). Thus, in Dervish and Anori, the Court of Appeal affirmed with the trial judge’s ruling that no comment interviews of the defendant were inadmissible and directing to the jury to draw an adverse inference from silence at charge. The right is also protected by prohibiting adverse inference in case of the accused’s failure or refusal to account for substances, marks, objects, etc. when he is not told the effect of his failure or refusal (S36(4)). This protection is also extended to his refusal or failure to account for his presence at a particular place (s37(3)).

1. Steven Greer, ‘The Right to Silence, Defence Disclosure and Confession Evidence’ (1994) 21 JL & Soc'y 102.
2. Gregory W. O’Reilly, ‘England Limits The Rights to Silence and Moves Towards and Inquisitorial System of Justice’ (1994) 85(2) The Journal of Criminal Law & Criminology 402.
3. Nicola Monaghan, Law of Evidence (Cambridge University Press 2015) 100.
4. Ibid, 86.

The right of silence reflects the principle that the prosecution should prove its case irrespective of the answer by the accused or defendant. In Woolmingto v DPP 1937, Lord Sankey held that it is the prosecution’s duty to prove the guilt. The statutory permission to draw adverse inference has not reduced this burden of proving the guilt, where the legislation assumes that the reluctance to speak or testify is indicative of guilt. Thus, in Murray v DPP, it was held that innocence cannot be inferred from silence. In a partly dissenting opinion by Mr. E. Busuttil, he stated the law of adverse inference may affect the presumption of innocence by ‘reducing the prosecution’s burden in matters of proofs. It is argued that prosecution finds its easier to discharge the burden of establishing a case to answer when inferences can be made from the failure to give evidence at trial. The system of due process stresses on the protection of individual rights and the system integrity by testing evidence that requires presumption of innocence and remedies for mistakes. The right to silence can be exploited by criminals. However, there is apparent disparity in resources available to the prosecution and the defendants that may not result to their fair trials. This is important given than the English legal system is adversarial in nature and the principle of drawing inference may ignore the compensatory measures in the system where defendants have lower resources than the prosecution. That is the reason why compensatory measures such as right to consult a solicitor are adopted.

CJPOA, in its Sections 34 – 36, provides for statutory adverse inferences. Under CJPOA, Section 34(1) and (2), inference can be drawn in a proceeding for an offence when the accused charged with an offence and on being questioned under caution to discover commission or non-commission of the offence did not mention a fact he relied on in his defence. Thus, in Lee, the Court of Appeal ruled that the trial judge correctly allowed the jury to draw adverse inferences out of the defendant’s silence in interview after his arrest for an assault. No specific details of the allegations were with the police at that stage. However, questions of the police were directed in an attempt to discover whether or by whom the assaulted was committed. Further, in M, it was held wrong to allow the jury to draw an inference upon the appellant’s failure to mention some relevant facts in interview. In this case, the interviewing officers mistakenly asked the appellant about the alleged rape on the wrong date. The appellant relied on facts on trial relevant to the date on which the alleged rape occurred. The appellant, in those circumstances, could not have reasonably been expected to state more. The circumstances such as these do not meet the criteria of drawing inherence where defendants failed to mention the fact upon being charged or after officially informing him a possibility of a prosecution. In cases related to counter terrorism, inference could also be drawn if he has been questioned under Section 22 of the Counter Terrorism and he has failed to mention the fact.

1. Dervish and Anori [2001] EWCA Crim. 2789.
2. Hannah Quirk, The Rise and Fall of the Right of Silence: Principle, Politics and Policy (Taylor & Francis 2016).
3. Woolmington v DPP [1935] UKHL 1, at 7.
4. Hannah Quirk, The Rise and Fall of the Right of Silence: Principle, Politics and Policy (Taylor & Francis 2016).
5. Murray v DPP [1994] 1 WLR 1.
6. Hannah Quirk, The Rise and Fall of the Right of Silence: Principle, Politics and Policy (Taylor & Francis 2016).
7. Ibid.
8. Ibid.

Reading the provisions provided under CJPOA and the cases so far mentioned above, it is pertinent to address the question of whether the provisions provide the right balance between protecting the right to silence as defence rights and statutory inferences to serve justice. The right to remain silent is provided under the European Convention of Human Rights by recognising it to be a part of international standard of justice and ECHR legal regime. To reiterate, this right is not absolute as determining whether or not adverse inferences infringes the right to a fair trial (Article 6 of ECHR) involves considering all the circumstances of the case, situations, and weight attached to the situations and circumstances while assessing evidence and degree of inherently relevant compulsion. Thus, in Condron v UK, the Strasbourg Court held that Sections 34 and 35 do not breach ECHR as CJPOA aims for a balance between the right to remain silent and the provision of drawing adverse inferences.

The underlying message is that if the defendant was required to speak about a fact, and he does not, this failure will be considered while determining whether to allow the jury to draw an adverse inference. For example, CJPOA, s35(2) provides for the court to satisfy itself at the conclusion of the evidence that the defendant knows the prosecution has reached the stage at which he can give defence evidence, and if he selects to be silent without any good cause the court may direct the jury to draw inferences. Section 35(4) does not compel the accused to give evidence and he cannot be held guilt of contempt of court. According to Section 35(5), the accused can exercise his right to be silent under any law that provides for such refusal to answer question and the court may excuse him from answering. These provisions ensure that the court takes into consideration all relevant circumstances and also provide opportunity for the accused to select the right to silence while determining to allow adverse inferences. Thus, Section 36 provides that after having informed the accused of the effect of failing to account for objects, marks, or substances, that may be attributable to the accused’s participation in an offence, the court may draw inferences from the failure or refusal as it deems proper. The same condition applies, as provided under Section 37, with regard to the accused’s failure or refusal to account for his presence at a particular place.

1. CJPOA, Section 34(1) and (2).
2. Lee [2015] EWCA Crim 420.
3. Ibid.
4. M [2012] 1 Cr App R 26.
5. Ibid.
6. CJPOA, Section 34(1) and (2).
7. Ibid, Section 34(1) and (2).
8. Murray (John) v UK (1996) 22 E.H.R.R. 29.
9. Ibid.
10. Condron v UK (2001) 31 E.H.R.R. 1.

CJPOA appears to ensure there is a proper balance between the prosecution and the accused in terms of their resources in proceedings. For instance, while determining the use of adverse reference, prosecutors must know that an adverse inference can be drawn where questions have been put. This is reflected in the case of Johnson. that it cannot be applied when a suspect refused to leave his cell to be interviewed. The Court of Appeal held that Section 34 direction could be avoided where in interview the defendant had set up the line of reasoning based on which he later relied upon despite some missing points of detail. Thus, prosecutors must scrutinise a case and seek an adverse inference direction only where the merits of a case requires it. In Argent [1997] 2 Cr App R 27, it was therefore held that Section 34 direction cannot apply just because the accused has refused to answer questions. Even in the case of R. v. Harris (Henricko), the Court of Appeal held that the trial judge was correct in not giving Section 34 direction rejecting the prosecution submission to use the inconsistencies in the defendant’s accounts as matters going to credit and that they were not seeking an adverse inference.

The provisions provided by CJPOA no doubt aims to find a balance between right to silence and adverse inference. For instance, section 35 allows an inference to be drawn when a Defendant is silent at trial. However, this section prevents an inference from being drawn when it appears to the Court that "the physical or mental condition of the accused makes it undesirable for him to give evidence." This provision presents one of those reasons that prosecution must consider before assuming guilt. Equating of silence with guilt makes multiple untested assumption that suspects are naturally guilty in behaviour. Such assumption ignores the social, physical and emotional context in which suspects determine whether or not to exercise the right of silence. Thus, reasons unrelated to guilt or innocence could be unintentional silence due to lack of knowledge, incomprehension or inhibition; or intentional silence due to lack of willingness, lack of permission or due to coercion. Other reasons could also arise out of innocence including the sense of protecting family, fear of reprisals, embarrassment, bewilderment, outrage or embarrassment or decision to wait until all details are laid out and legal advice is sought. Being silent can also be a response to inappropriate behaviour of the police or a belief that the prosecution should prove the case without any aid. Some defendants may find testifying stressful where defendants may be unable to defend well and may have cultural or language or emotional barriers, such as in REGINA v Kiranjit Ahluwalia.

1. Johnson [2005] EWCA Crim 971.
2. Ibid.
3. Argent [1997] 2 Cr App R 27.
4. R. v. Harris (Henricko) [2016] 1 Cr.App.R. 4.

Conclusion

This essay will conclude that CJPOA and the case laws have sufficient provisions that extend protection to an accused or defendant’s right to silence. The provisions themselves provide for the court to properly satisfy itself by determining whether or not the accused was aware that any failure or refusal to answer can make the court allow to draw inference. Being silent, thus, does not automatically lead to drawing inference. There are conditions to be met by considering all available circumstance.

Continue your exploration of Human Rights Protection in the UK with our related content.

---

1. Hannah Quirk, The Rise and Fall of the Right of Silence: Principle, Politics and Policy (Taylor & Francis 2016).
2. Ibid
3. Ibid
4. REGINA v Kiranjit Ahluwalia | [1992] EWCA Crim 1.

Legislations

Criminal Justice and Public Order Act 1994

Cases

Argent [1997] 2 Cr App R 27

Condron v UK (2001) 31 E.H.R.R. 1

Dervish and Anori [2001] EWCA Crim. 2789

Johnson [2005] EWCA Crim 971

Lee [2015] EWCA Crim 420

M [2012] 1 Cr App R 26

Murray v DPP [1994] 1 WLR 1

Murray (John) v UK (1996) 22 E.H.R.R. 29

R. v. Harris (Henricko) [2016] 1 Cr.App.R. 4

REGINA v Kiranjit Ahluwalia | [1992] EWCA Crim 1

Woolmington v DPP [1935] UKHL 1

Books

Quirk H, The Rise and Fall of the Right of Silence: Principle, Politics and Policy (Taylor & Francis 2016)

Monaghan N, Law of Evidence (Cambridge University Press 2015)

Journals

Greer S, ‘The Right to Silence, Defence Disclosure and Confession Evidence’ (1994) 21 JL & Soc'y 102.

O’Reilly GW, ‘England Limits The Rights to Silence and Moves Towards and Inquisitorial System of Justice’ (1994) 85(2) The Journal of Criminal Law & Criminology 402