Silence at the Police Station
Silence can be used as evidence against a defendant. Whilst a defendant has a right to remain silent when questioned at a police station, under s. 34 of the Criminal Justice and Public Order Act (‘CJPOA’) 1994, a judge or jury can draw an adverse inference when told about this silence at the trial.
It is for the jury to decide whether or not to draw the adverse inference. In addition, s. 38(3) of the 1994 Act provides that an adverse inference alone will not be enough for a finding of guilt against a defendant.Before an adverse inference can be drawn by the jury at trial, three conditions must apply:
1) the defendant was questioned by the police at any time before and on being charged. This also includes after charge in the case of terrorism offences - see s. 34(1)(c) as amended by s. 22 of the Counter-Terrorism Act 2008, and
2) the defendant was questioned under caution (this is a requirement under Code C PACE 1984, para 10.5), and
3) during the questioning the defendant failed to mention any fact which is later relied upon in his/her defence and which he/she could reasonably have been expected to mention.
It is important to note that for the purposes of s. 34, silence does not mean merely saying nothing at all. It means a failure to mention a material fact. This can either be orally during questioning or if a defendant submits a written statement and omits facts he/she later relies on (see R v Knight [2003] EWCA Crim 1977). According to R v Webber [2004] UKHL 1 “a fact” should be given a broad meaning and should cover any alleged fact which is in dispute between the prosecution and the defence. The fact must also be one the defendant later relies on at trial (for example as part of their defence).
The question of whether it was reasonable to expect the defendant to have mentioned a fact is one for the jury to decide.
The case of R v Argent [1996] EWCA Crim 1728 provides some helpful guidance as to circumstances that might affect whether it was reasonable for a defendant to mention a relevant fact when at the police station. These circumstances include:1. A defendant’s age - child defendants are unlikely to recognise what might be an important fact in their case and may forget to reveal important information to the police during questioning.
2. Whether the defendant has experience of the criminal justice system - an experienced defendant is more likely to appreciate what facts are relevant and likely to be disputed at trial.
3. Defendant’s mental capacity - a defendant who lacks mental capacity may find questioning confusing and fail to appreciate what are important facts to tell the police about their case.
4. The defendant’s state of health whilst at the police station - a defendant who is ill might have difficulties concentrating and recalling information. This is also true for a defendant who is tired (due to lack of sleep).
5. Whether or not the defendant was sober during questioning - drugs or alcohol will affect a defendant’s concentration, memory and communication.
6. The level of the defendant’s knowledge - it may be that the police have not made the nature of the allegations clear to the defendant during questioning.
7. Whether a defendant was given access to legal advice (see s. 34(2A) of the CJPOA 1994 as inserted by s. 58 of the Youth Justice and Criminal Evidence Act 1999) or was given legal advice to remain silent (a ‘no comment interview’). In the case of advice to give a ‘no comment interview’ cases such as R v Hoare & Pierce [2004] EWCA Crim 784 and R v Beckles (no 2) [2004] EWCA Crim 2766 state that the accused must genuinely rely on his/her solicitor’s advice and it must also have been reasonable for him/her to do so. A defendant can waive their right of access
to legal advice and the right to access can also be temporarily delayed by the police.
If the jury cannot draw an adverse inference because the conditions under s. 34 are not met or it would not be reasonable to draw such inferences (taking account of the Argent principles), the judge must actively direct the jury that it cannot draw an adverse inference - see R v McGarry [1998] EWCA Crim 2364.
If the jury can draw an adverse inference the judge should still warn the jury of the need to be careful in making a link to guilt by reminding the jury the defendant has a right of silence and that there must still be a prima facie’ (on first impressions) case against a defendant before they can be found guilty. This is known as a ‘Condron direction' from the case of Condron and Condron v UK [2000] ECHR 191.
5.5.1 Silence at the Trial
A defendant can also choose to exercise their right of silence at trial by not going into the witness box or failing to answer questions. However, the jury can draw an adverse inference if the defendant does not have a good reason for the silence (see Criminal Justice and Public Order 1999, s. 35). A good reason is either (1) that the accused's guilt is not in issue - see s. 35(1)(a) or (2) that the physical or mental condition of the accused makes it undesirable for them to give evidence - see s. 35(1)(b). In R v Friend (No 2) [2004] EWCA Crim 2661, the Court of Appeal held that a defendant suffering from “attention deficit and hyperactivity disorder” would have good cause to remain silent at trial.
When the trial reaches the half-way point at which the defendant would be expected to be called as the first defence witness, the judge should ask the defendant whether he intends to give evidence. If the answer is “no” then the judge must be satisfied that the implications of silence have been explained to the defendant and if necessary explain this to the defendant. This obligation is set out in CrimPR Part 25.9(2)(f).
Before a jury draws an adverse inference, the court must direct the jury (known as a ‘Cowan direction' - see R v Cowan [1995] EWCA Crim 8).
Again, the judge should remind the jury that a defendant has a right of silence as well as reminding them that the burden of proof at the trial remains with the prosecution and the jury must be satisfied that the prosecution has established a case to answer. The jury must also be satisfied that the silence at trial can only be attributed to the fact that the defendant has either no answer to the case against them or none that would stand up to crossexamination. As with s. 34, the jury cannot use an adverse inference as the sole basis for deciding on guilt (see s. 38(3)).5.5.2 Silence on Arrest
Other circumstances where a jury may draw an adverse inference from silence during the trial is where the silence has occurred on the defendant being arrested and the
defendant fails to account for any object, substance or mark found on them (s. 36) or fails to account for their presence at a particular place at the time of the offence (s. 37). In both these circumstances the defendant must have been cautioned on arrest. There is a special wording for this caution (see Code C PACE 1984 para 10.11). The drawing of an adverse inference is also subject to s. 38(3) in terms of not being used as the sole basis for deciding on the defendant’s guilt.
5.5.3 Other Examples of Silence as Evidence
Other circumstances in which the jury may draw an adverse inference from silence are to be found (1) under s. 11(5) of the Criminal Procedure and Investigation Act 1996 (where a defendant who is required to file a defence statement in the Crown Court fails to do so) and (2) where a defendant fails to consent to an intimate sample being taken at a police station (e.g. blood, semen) without good cause (see Police and Criminal Evidence Act 1984, s. 62(10) and Code D of PACE 1984, para 5A).
5.5.4 Privilege Against Self-Incrimination
As with civil proceedings, in criminal proceedings a witness may rely on the privilege against self-incrimination and refuse to answer questions or provide documents or information. For a defendant, the right of silence means that it is not necessary to rely on an additional privilege against self-incrimination. There are however certain statutes that require a witness to answer questions or face criminal prosecution. However, under the Youth Justice and Criminal Evidence Act 1999, s. 59 where a statute requires a defendant to answer questions (such as the Companies Act 1985, s. 434) the answers given cannot be used in a later criminal trial if the answer was given as part of non-judicial investigations.
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