first class answer to the statutory porovisions affecting the right to silence and the right against self-incrimination. detailed answer giving case law. both question and corresponding answer given.
1. “The section 34 inference is concerned with flushing out innocence at an early
stage or supporting other evidence of guilt at a later stage.”
(Lord Justice Auld at para 54 in R v Hoare & Pierce [2004] EWCA Crim 784).
With reference to decided cases, critically assess how the Courts have
construed the statutory provisions affecting the right to silence and right
against self- incrimination.
The current law on the right to silence is the protection given to an individual from
adverse consequences of remaining silent. Self-incrimination is the right in refusing
to answer questions or give testimony against himself which will subject him to
incrimination – Blunt v Park Lane Hotel [1942]. The fundamental reason behind
these protected rights is to guard against oppression, coercion and police
misconduct. A balance must be struck as Article 6.2 is not absolute and can, when
supported, be limited/qualified/interfered by the State given this is proportionate to a
legitimate aim. It is argued the rights complement various statutory provisions that
declare an accused shall not be a compelled witness. The right to silence and
privilege against self-incrimination are based on the presumption of innocence.
However, judicial interpretation and legislative intervention may impinge on the
accused’s privilege against self-incrimination and right to remain silent without any
adverse inference.
Criminal Justice and Public Order Act 1994 (CJPAO) s.34 places an obligation on
the accused to mention facts when being questioned /charged if they intend to later
rely on them in their defence. When the accused has been warned to account for
certain facts, inferences may be drawn from failure to do so. The provisions do not
compel an accused to speak but may provide pressure to do so. The CJPOA
introduced the principle of drawing adverse inferences from the silence of the
accused. This provision was later inserted by S.58 of the Youth Justice and Criminal
Evidence Act 1999 in response to the decision in Murrey v UK [1996]; an inference
cannot be drawn if the suspect was not given the opportunity to consult a solicitor.
Here the court considered even legitimate exercises of power to delay access to
legal advice (s.58(3) Police and Criminal Evidence Act (PACE)1984) could, where
the accused was at risk of adverse inferences under the statutory scheme, be
adequate to deny the accused of a fair procedure under Article 6. The caution to be
given to a person to whom a restriction on drawing inferences applies is specified in
PACE Code C, annex C.
Statutory curtailment of the right to silence is justified to prevent ambush defences as
stated in R v Brizzalari [2004]. Early disclosure of the accused’s defence is the
objective behind S.34. A strong argument for drawing an adverse inference from
silence occurs where the accused retains his defence under interrogation but
presents it at trial when it may be too late for it to be countered. S.34 further applies
to where the defendant, in his defence, fails to mention a specific fact which he later
relies upon. In Abdalla [2007] the defence of self-defence was immediately
disclosed, however he failed to mention he believed his victim was armed with a
hammer. The decision of the judge to proceed in a ‘low key’ way without giving
warning supports the prevention of ambush defences.
, 794577
Prepared statements provide a way of avoiding adverse inferences, appropriate
where the accused is nervous/vulnerable, allegations are complex or police
disclosure is limited/partial. R v Turner [2004] consolidates the decision in R v Knight
[2003] that s.34 purpose is to encourage the disclosure of defence, not allow the
police to cross-examine the suspect. The danger of prepared statements is where
the jury is directed to regard differences between the prepared statement and the
accused’s evidence as constituting a previous lie rather than a foundation for a
direction under s.34.
Legal advice has proven problematic and subject of numerous decisions. In Beckles
v UK [2005] the CA reviewed multiple authorities including the previous ECHR
decision in Beckles. The authorities’ decisions were conflicting, with Betts [2001]
favouring a subjective test and Knight [2003] an objective test. The decision in
Beckles adopted a collective approach to conclude genuine reliance was taken from
the solicitor’s advice. The accused who wishes to give a record of his reasons for
silence after legal advice may find it difficult to do so without waiving privilege.
Should the accused or his solicitor elaborate on such guidance, privilege is waived,
to the extent of opening up questions which appropriately go to whether such
premise can be genuine clarification for his silence, (e.g. whether he told his solicitor
the facts now relied upon at trial as seen in R v Seaton [2011].)
Domestic cases show s.34 has been more difficult in directing the jury than s.35
(failure to testify at trial.) The ECHR in Beckles [2003] provides the direction trial
judges are to take with regards to ‘all the circumstances’, including the strength of
the evidence and the “degree of compulsion inherent in the situation.” This does not
automatically shield suspects from the risk of the inference under s.34. Failure to
give proper direction does not necessarily involve a breach of Article 6. However, the
ECHR stated in Beckles, it would be incompatible with Article 6 to base a conviction
solely/mainly on the accused’s silence. In Daniel [1998] the jury may deduce the
accused was faced with a choice to remain silent or lie and incriminate himself
further with the truth. This is a permissible inference under s34. In Bresa [2005] an
explanation for the failure to mention facts on the ground of acting upon legal advice,
however not explaining reasons for such advice, requires the judge to give direction
without indicating the silence is guilty. A Lucas direction may overlap in such
situations as it provides protection where there is an innocent reason for the
defendant to lie. Issues arise where the jury declines the innocent reason, thus the
lie can be used to support the prosecution’s case. The issue of which direction to
give should the lie be given in a police interview was addressed in R v Rana. The CA
stated the importance of the judge not to complicate/confuse matters for the jury with
conflicting directions. An explanation given for the lie into a s34 direction should
preferably be used.
Section 35 provides a choice for the defendant to provide evidence, however without
good reason for refusal, the jury may draw adverse inferences from that failure (R v
Winston [2015]). Sections 36 and 37 have restrictive approaches. Whilst s36 is
concerned with the state of the suspect at the time of the arrest, s37 concerns the
suspects location at the time of arrest. It is questionable for the restrictive approach
as the intention would be to allow further guilty inferences should the accused fail to
explain.
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