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Right to silence
Introduction
As a rule, witnesses are compellable to answer questions put to them in court
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However, while in countries such as the USA the right to silence is absolute, since the introduction of the CJPOA 1994 this
right in the UK has been severely curtailed, allowing ‘proper inferences to be drawn by a suspect’s failure to disclose facts to
the police which they later rely on (s
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35), failure to provide explanations
for incriminating objects, substances or marks (s
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37)
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While the jury may be able to drawn inferences from silence, some claim that the right of silence still exists within the UK
because it is not a crime to remain silent (Lord Chief Justice in Cowan 1996)
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Many argued that the reforms would lead to false confessions being made, and the prospect of juries attaching too much
significance in a case to the defendant’s silence
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Indeed, those who support this agenda would argue that innocent people can only gain from assisting the prosecution
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Section 34
Section 34 allows the jury in some circumstances where a suspect fails to give facts to the police which he later relies on in his
defence
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In support of the law it can be seen of fulfilling one of its objectives to an extent
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Furthermore, a major concern was the amount of ambush defences where the defendant would not give his version of events
until the trial
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But critics point to the fact that for the innocent, the mere suspicion of guilt can make them feel highly uncomfortable
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While the ECtHR has declared that the right to silence lies ‘at the heart’ of Art
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But this does not give the courts a free role to find suspects guilty because of their silence
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38(3) provides that a conviction cannot be made solely on inferences drawn from guilty
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However the court made clear that allowing adverse inferences to be drawn in some situation does not violate Art
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But in which situations will drawing inferences be acceptable?
This is one big question that the courts have had to get to grips with
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One of these is that
an inference should only be drawn if the suspect failed to mention a fact that ‘he could have reasonably been expected to
mention’ in the circumstances existing at the time
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Legal Advice
Firstly, not everyone receives proper legal advice in the first place for a variety of reasons
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Furthermore, for innocent suspects, the environment of the police station can be pretty daunting and many will just want the
ordeal to be over as quickly as possible
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However, perhaps more controversially, inferences can sometimes be drawn even when a suspect has got a legal adviser who
has told them to remain silent
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The court held that inferences could still be drawn if reliance on this advice was unreasonable in the
circumstances
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Firstly, it seems that it is up to a defendant to make his own decision about whether legal advice is correct or not and
Secondly, what is reasonable in the circumstances could depend on the disclosure of what has been said between the solicitor
and client, which violates legal professional privilege
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In Condron, the suspects had been advised to stay silent because they were suffering from symptoms of heroin withdrawal
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A more recent case to reach the CA was that of Howell which seemingly went back on the ECtHR’s more restrictive approach
and confirmed Argent in the fact that the reliance on advice must be reasonable in the circumstances
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This is understandable, with Dennis saying that cooperation with the police is a good thing in the light of strong evidence and
hence this rule will only penalise the guilty
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While Doak and McGourlay see it as something being given with one hand is being taken by the other
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This can be very daunting for the innocent suspect
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Section 35
It has been argued that section 35 does not have the prejudicial effect on the defendant that section 34 does
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Unlike in relation to s
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35 the jury are entitled
to only consider the prosecution case (Doldur)
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Furthermore, the CA in Doldur held that in order for s
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Direction from the Judicial Studies Board says that an inference should only be drawn if there is no other sensible explanation
for his failure
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Hence the threshold seems to be quite high
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In the previous leading case of R v Martinez-Tobon whilst warning that the jury should not equate silence with guilt, the CA
held that the judge may pass comment if the defence case was at odds with the prosecution and if such facts would be within
the knowledge of the defendant
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As Doak and McGourlay say: ‘the government obviously set out to change the law, but doubtful that it really did
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34 say that they merely bring the law back in line with ‘common sense’, meaning that innocent suspects
answer police questions (Webber)
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A report
by Zander and Henderson showed that despite comment by the prosecution being prohibited, in 80% of crown court trials a
defendant’s prior silence became known anyway
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Furthermore, supporters of the legislation often point to the safeguards affording to suspects, such as s
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This means that it is unlikely that innocent suspects will be found guilty based solely on silence
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In R v McLernon the court held that it would be unwise to anticipate the
circumstances where inferences can be drawn since each case turns on its individual facts while in Cowan the CA said that it
would not interfere lightly on the trial judge’s discretion
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Partly
showed by increase of people answering all police questions
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However since the legislation has had little effect on the conviction rate, is this really incentive enough to counter the
eradication of the defendant’s liberties as well as the confusion which has been caused around legal advice and legal
professional privilege?



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