Right to Silence: inferences from silence - The Public Defenders

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What happens in practice is that the trial Judge invites both the Prosecution and Defence trial advocates to address him/her on the following: (1) Do the Prosecution invite the court to draw adverse inferences from pre-trial and trial defendant silence? (2) If so, on what basis. (3) Any counter arguments from the Defence. (4) Ruling on the applicability of an inference direction. (5) Counsel’s suggestions as to any tailoring of the JSB specimen directions. Failure to give a proper direction will not, however, necessarily involve a breach of Article 6 for ECHR Strasbourg purposes, nor render a conviction unsafe in the domestic English appellant court. In Chenia, the factors which persuaded the court that C had received a fair trial included the strength of the evidence, the fact that his failure to mention relevant facts was not consequent upon legal advice and the clear and accurate direction given on the failure to give evidence in the case. In relation to access to Legal Advice, section 34(2A) of the CJPO 1994 was added by s.58 YJCEA 1999, to bring the law into line with the judgment of the European Court of Human Rights in Murray v UK (1996) 22 EHRR 29. The court considered that even the lawful exercise of a power to delay access to legal advice could, where the accused was at risk of adverse inferences under the statutory scheme, be sufficient to deprive the accused of a fair procedure under Article 6. The accused was faced with a ‘fundamental dilemma’ at the outset of the investigation, in that his silence might lead to adverse inferences being drawn against him, while breaking his silence might prejudice his defence without necessarily removing the possibility of inferences being drawn against him. Under the amended scheme, the dilemma is resolved by postponing the prospect that inferences will be drawn until the accused has had the option of consulting with a legal adviser. The postponement occurs in exactly the same way whether access to legal advice is delayed lawfully or unlawfully. An ‘authorised place of detention’ is defined by s. 38(2A) to include police stations and any other place prescribed by order. The caution to be given to a person to whom a restriction on drawing inferences applies is specified by PACE Code C, annex C. No conviction wholly or mainly on silence Section 38 Criminal Justice and Public Order Act 1994 (3) A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2), 35(3), 36(2) or 37(2). (4) A judge shall not refuse to grant such an application as is mentioned in section 34(2)(b), 36(2)(b) and 37(2)(b) solely on an inference drawn from such a failure as is mentioned in section 34(2), 36(2) or 37(2). Colin Wells July 2013 Page 6
Section 38(3) applies to all four of the provisions of the 1994 Act which operate to permit the drawing of inferences from silence, and s. 38(4) to the three appertaining to out-of-court silence. Where the issue is whether the jury should be at liberty to convict in reliance on an inference drawn under s. 34, it is essential that they be directed that such an inference cannot standing alone prove guilt (Abdullah [1999] 3 Arch News 3). A more pressing question is whether the courts should go beyond the rule laid down in s. 38(3) in order to ensure that no conviction is based mainly on one or more of the statutory inferences. In Murray v UK (1996) 22 EHRR 29, there is a very strong statement that it would be incompatible with the accused’s rights to base a conviction ‘solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself’; see also Condron v UK (2001) 31 EHRR 1. The current specimen direction of the Judicial Studies Board makes reference to the need for the jury to be satisfied that there is a case to meet : Milford [2001] Crim LR 330. In Beckles v UK (2003) 36 EHRR 162, the European Court of Human Rights, after considering the above authorities, confirmed that the correct principle was, as stated in Murray v UK, that a conviction based solely or mainly on silence or a refusal to answer questions would be incompatible with the right to silence. In Chenia [2003] 2 Cr App R 83, the Court of Appeal confirmed that a direction which omitted reference to the need to consider whether there was a case to answer is ‘deficient’, but on the facts did not consider it was fatal to a conviction where the existence of a prima facie case is beyond dispute. Further, in Petkar [2004] 1 Cr App R 270, it was held that the jury should be told in terms not to convict ‘wholly or mainly’ on an adverse inference, and that the words ‘or mainly’ were required to ‘buttress’ the requirement for proof of a case to answer otherwise than by means of the inference. In Parchment [2003] EWCA Crim 2428, it was said that where the case against an accused was weak it was crucial that the limited function of the failure to mention something in interview was clearly spelled out to the jury, and accordingly the conviction of one of the accused for murder was quashed where the appropriate direction had not been given. Fact Relied On Section 34 of the CJPO 1994 does not apply where the accused makes no attempt to put forward at trial some previously undisclosed fact (e.g., where he simply contends that the prosecution has failed to prove its case). In Moshaid [1998] Crim LR 420, M, acting on legal advice, declined to answer any questions. At trial he did not give or call any evidence. It was held that s. 34 did not bite in these circumstances. It goes too far, however, to suggest that s. 34 applies only where the accused gives evidence: a fact relied on may be established by a witness called by the accused, or may be elicited from a prosecution witness (Bowers [1988] Crim LR 817). In Webber [2004] 1 WLR 404, where the authorities are reviewed by Lord Bingham, it was held that an accused ‘relies on’ a fact or matter in his defence not only where he gives or adduces evidence of it but also where counsel, acting on his instructions, puts a specific and positive case to prosecution witnesses, as opposed to asking Colin Wells July 2013 Page 7
Page 1 and 2: “Right to Silence: inferences fro
Page 3 and 4: The fairness of drawing such infere
Page 5: (4) The questioning had to be direc
Page 9 and 10: Prepared Statements The use of prep
Page 11 and 12: In Hilliard [2004] EWCA Crim 837, H
Page 13 and 14: This has practical implications for
Page 15 and 16: ecause the defence did not expect t
Page 17 and 18: accused is aware that the stage has
Page 19 and 20: a factor militating against the def
Page 21 and 22: Appendix A EXTRACT FROM PHILLIPS V

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