Interrogations-and-Confessions-Handbook

The English Law on Confessions 273
Sections 34 to 37. Section 39 provides the authority to apply Sections 34 to 38
to the armed services.
One of the main impacts of changes to the right of silence is to place detainees
under increasing pressure to answer questions (Bucke & Brown, 1997; Hodgson,
1997). The complexity of the new caution and the fact that the great majority
of detainees do not fully understand it (Fenner, Gudjonsson & Clare, 2002) are
additional problems.
Legal advice to a suspect to remain silent when interviewed by the police
does not prevent an adverse inference being drawn under Section 34 when the
case goes to court (Richardson, 2001). This was made clear by the ruling in
Condron and Condron ([1997], Cr.App.R. 185). However, in view of a ruling by
the European Court of Human Rights in Condron v. U.K., domestic courts will
need to give ‘appropriate weight’ to mitigating circumstances because there
may be good reasons for such legal advice (Richardson, 2001, p. 1503).
Section 58 of the Youth Justice and Criminal Evidence Act 1999 amends
Section 34 of Criminal Justice and Public Order Act so that no adverse inferences
can be drawn from silence, or failure to provide an explanation, whilst
the suspect is detained at a police station, unless he or she has been provided
with the opportunity to consult with a solicitor.
As far as Sections 34 and 35 are concerned there are some fundamental differences
between these two sections (R. v. Doldur [2000], Crim.L.R. 178). With
regard to Section 34 the issue is whether the explanation relied upon by the
defendant at trial is suspicious due to it not having been provided earlier (e.g.
at the time of the police interview or when charged). In their deliberation, the
jury would usually be directed to consider both the prosecution and defence evidence.
In contrast, Section 35 direction is confined to the prosecution evidence
and the jury can only draw adverse inferences if they found the Crown’s case
required an answer. In other words, there has to be a prima facie case before
the jury can draw adverse inferences. According to the decision and standard
directions formulated in Cowan, Gayle and Ricciardi ([1996], Crim.App.R. 1)
pursuant to Section 35, there are four essential requirements of the judge in
terms of instructions to the jury. First, the judge has to make it clear that
burden of proof remains with the prosecution throughout, and to specify what
the required standard is. Second, the defendant has the legal right to exercise
his right of silence. Third, an inference from failure to testify cannot on
its own prove guilt. Fourth, the judge has to ensure that the jury knows that
they must find a case to answer (i.e. a prima facie case) on the prosecution
evidence before they draw any inferences from silence. A judge’s failure to provide
this direction may risk the jury drawing adverse inferences from silence
before it considers whether there is a prima facie case. As recognized in R. v.
Birchall ([1999], Crim.L.R. 311), an omission by a trial judge to give full standard
directions to the jury resulted in the Court of Appeal quashing a murder
conviction:
. . . standard directions were devised to serve the ends of justice and the Court
must be astute to ensure that these ends were not jeopardised by failure to give
directions where they were called for. The drawing of inferences from silence was
a particularly sensitive area and many respected authorities had voiced the fear