Criminal Trials: The Effect of Silence

The rules of fair trials in court

Article 6 of the European Convention of Human Rights guarantees, or purports to guarantee, the right for every individual to a fair trial. Moreover, Article 6(2) states that “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. It is therefore up to the prosecution to prove that the accused is guilty. To this end, the law has often recognised the right of the accused to remain silent under police questioning as well as the privilege against incrimination. However, in this country at least, this right is not absolute. Many argue that the extent to which the right to silence and privilege against self incrimination is curtailed is in line with Article 6 of the convention, and that therefore the right to a fair trial is not infringed. This essay proposes to explore the extent to which these rights are curtailed by the way that the law allows juries to draw adverse inferences from the accused’s silence at certain different stages of the criminal litigation process. Firstly, therefore, we shall examine what is meant by an adverse inference and how exactly the concept of adverse inferences operate.

Parliament has created a number of rules that allow the failure of the accused to answer allegations to be admitted as evidence of the defendant’s guilt. It is not difficult to understand why a lie might prove that a person is guilty of an offence. A lie suggests that the person lying is trying to cover up their guilty behaviour. But what stand does the law take when it comes to a defendant’s refusal to answer questions or explain certain matters? Clearly it is possible to infer from such silence that the defendant or suspect does not have an explanation that will stand up to questioning or scrutiny. However, there can be several reasons why a person would refuse to answer questions or explain evidence that may incriminate him/her, and being guilty is only one of these reasons. The courts, therefore, have sought to ensure that juries are carefully directed only to use silence as evidence against the defendant after all innocent explanations have been rejected. Due to the fact that such evidence can quite clearly be seen to run contrary to the right to silence and the privilege against self incrimination, the statutory provisions mentioned below have been the subject of much scrutiny to determine whether they comply with the right to a fair trial. This scrutiny has influenced the way in which the courts interpret and apply these provisions. However, instead of a single rule relating to inferences from silence, Parliament has provided different rules for inferences to be drawn in respect of silence at different stages of the criminal process. The relevant provision for the purposes is section 34 of the Criminal Justice and Public Order Act 1994, which states:

1. Where, in any proceedings against a person for an offence, evidence is given that the accused –

1. at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
2. on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,

…

2. Where this subsection applies-

…

3. the court, in determining whether there is a case to answer; and
4. the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.

What section 34 therefore does, in effect, is place the suspect under an obligation to explain his or her potential defence under certain circumstances. The duty, however, is not absolute, and therefore there is no automatic sanction for failing to explain a defence. The consequence of failing to mention a fact is simply that the jury, or whoever the tribunal of fact is in that case, is given the option of treating the failure to say something as evidence for the prosecution. It can draw inferences from the defendant’s failure to explain defences at two different stages: (1) upon being questioned, but only if the accused has been cautioned or he has not yet been charged with the offence; and (2) upon being charged with the offence. According to PACE Code C, para 10.4, the text of the caution is:

You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you so say may be given in evidence.

All questions asked by a police officer are therefore not necessarily covered by section 34. Moreover, a very important feature of section 34 is that inferences cannot be drawn simply because the accused did not answer questions during interview, or upon caution. They may only be drawn if the accused relied on a fact in his defence and did not mention that fact when questioned under caution or charged. It is therefore the last minute use of a defence or of facts supporting a defence that leads to the inference rather than the simple exercise of the right to silence. Moreover, the failure to mention the fact must be unreasonable. Section 34 states that a fact which is not mentioned must be ‘a fact which, in the circumstances existing at the time, the accused could reasonably have been expected to mention’. In R v Nickolson [1999] Crim LR 61, for example, it was held that a suspect could not be expected to give an explanation of incriminating evidence that had never been presented to him during the interview.

But what happens when the suspect remains silent due to advice from his solicitor. Can the jury or tribunal of fact draw inferences in such a situation? If they can, is this fair? In R v Condron [1997] 1 Cr App R 185, Condron and his wife, both heroin addicts, were convicted of offences relating to the supply of the drug. At the interview they both remained silent on the advice of their solicitor who, despite medical advice to the contrary, considered that their drug withdrawal symptoms rendered them unfit to be interviewed. At the trial the two accused put forward innocent explanations of all the prosecution evidence, which explanations could have been given at the police station. The jury was directed that they could draw an inference from the failure of the accused to explain their defences at the police station. The Court of Appeal affirmed their convictions. Legal advice could not determine whether or not section 34 applied. Instead the jury should have regard to the reasons given by the accused, including the legal advice, and consider whether it is the legal advice or the consciousness of guilt that is the reason behind their silence on being questioned. The matter was taken to the European Court of Human Rights (Condron & Condron v UK [2000] Crim LR 677) where it was decided that it was necessary that the jury be directed that they should only draw an adverse inference if they concluded beyond reasonable doubt that that the only reason for failing to mention the fact was that the suspect had no answer to the questions or none that would stand up to cross examination.

It must follow from this case, however, that an accused is theoretically at risk from an adverse inference been drawn from silence consequent upon legal advice, even where he is given advice which is plainly bad. This might be thought unfair to the accused who puts his faith in his solicitor’s judgment. In such a situation, would Article 6 of the Convention guaranteeing a fair trial not be infringed?

In R v Argent [1997] Crim LR 346 the Court of Appeal stated that the jury should take into consideration the circumstances in which advice was given and the personality of the accused in deciding the real reason for remaining silent. It was also said that the reasons for the legal advice should not determine whether or not adverse inferences could be drawn. The jury should not be concerned with the correctness of the advice buts its impact upon the accused’s conduct at the police station. Therefore it is not the fact or the accuracy of the legal advice that decides whether or not it amounts to a good reason for remaining silent. Rather the jury will have to consider whether the advice was the cause of the silence or whether it was some other matter, and should only infer guilt where they conclude that this other matter was the guilty mind of the accused.

Condron and Argent were followed in the case of R v Daniel [1998] 2 Cr App R 373. Here Daniel, who gave “no comment” answers when interviewed following his arrest, appealed against his conviction of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a class A drug on the ground that no adverse inference could be drawn from his silence, pursuant to the Criminal Justice and Public Order Act 1994 s. 34, since he had simply been following the advice of his solicitor not to answer questions.

It was held, dismissing the appeal, that the fact that a defendant had been following his solicitor’s advice did not prevent the judge from directing the jury that they could draw an adverse inference from the defendant’s failure to answer questions. The dicta of Stuart-Smith, L.J. in R. v Condron, that, in addition to giving the specimen direction of the Judicial Studies Board, in cases where the accused failed to answer questions, the judge should direct the jury that they could draw an adverse inference where they concluded that the failure was attributable to the accused having later fabricated evidence, could be extended to permit an adverse inference to be drawn where the defendant had failed to answer questions because of an unwillingness to be subjected to additional questioning while in a vulnerable situation.

In the interesting case of R v Allan [2004] EWCA Crim 2236 the appellant appealed against his conviction of murder and conspiracy to rob, via a reference under the Criminal Appeal Act 1995 s. 9. When first informally interviewed about the incident the appellant had voluntarily given an alibi. However, in all subsequent police interviews he had remained silent on the advice of his solicitor. The main prosecution evidence against him had been that of a police informant. The police had arranged for the informant to share a cell with the appellant with the purpose of extracting information from him. The informant was aware at the time of his agreement to inform on the appellant, that there was a reward for information leading to conviction for the crimes. That the informant had that early knowledge of the reward was not disclosed to the defence until shortly before the appeal. The appellant had appealed to the European Court of Human Rights (ECtHR) which had ruled that the admission of the informant’s evidence had contravened the appellant’s rights under the Human Rights Act 1998 Sch. 1 Part I Art. 6. The informant had been acting as an agent of the state and had elicited information from the appellant by conducting a quasi interrogation. That was an infringement of his right to silence and the privilege against self incrimination. The appellant submitted that the judge’s directions to the jury on the adverse inferences that could be drawn from his exercise of the right to silence had been flawed.

It was held, allowing the appeal, that the trial judge’s directions on the adverse inferences that might be drawn from the appellant exercising his right to silence had not been in line with the then recent authorities or Judicial Studies Board guidelines. He had failed to specify which facts the defendant could reasonably have been expected to mention when interviewed, had not indicated how the jury should approach his alibi evidence and had failed to follow R v Condron by not explaining clearly in what circumstances adverse inferences might nevertheless be drawn when a defendant claimed he had stayed silent on the advice of a solicitor.

In theory this seems very fair and totally in line with Article 6 of the Convention. But in reality, could it not be said that this places too much responsibility on the hands of the tribunal of fact, particularly where the tribunal of fact is a jury? Is this not too important, and, moreover, too technical to be left in the hands of a lay jury? Is there not a real risk of injustice?

Before attempting to answer this question it might perhaps be better if the effects of the adverse inferences are seen in perspective. The jury should be told in the summing up by the judge, that^[1]:

1. a suspect is not bound to answer police questions.
2. An inference from silence cannot prove guilt on its own.
3. The prosecution must have established a case to answer before any inference may be drawn.
4. It is for them to decide whether the defendant could reasonably have been expected to have mentioned the defence. If they think the defence should have been mentioned then the jury may, but not must, draw inferences from the accused.
5. They can draw an inference only if satisfied that the defendant was silent because he had no answer or none that would stand up to cross examination or investigation.

In light of this, perhaps the laws on adverse inferences from silence consequent upon legal advice might not, it is submitted, be as adverse to the defendant’s right to a fair trial as at first it seemed.

BIBLIOGRAPHY

Cases

• R v Nickolson [1999] Crim LR 61
• R v Condron [1997] 1 Cr App R 185
• Condron & Condron v UK [2000] Crim LR 677
• R v Argent [1997] Crim LR 346
• R v Daniel [1998] 2 Cr App R 373
• R v Allan [2004] EWCA Crim 2236

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^[1] Judicial Studies Board Guidelines (see www.jsboard.co.uk)