Evidence: Silence Flashcards
What is the right to silence?
The right to silence: Suspect can choose not to answer questions asked of them in an interview, although the police can continue to put their questions.
An accused person traditionally has had the right to silence. This is not a concept specifically guaranteed in Article 6 ECHR, however the right not to incriminate oneself is at the very heart of the fair trial provisions.
What is the drawback to staying silent in a police interview?
** Disadvantage: There are repercussions for staying silent under the Criminal Justice and Public Order Act 1994 (CJPOA). This statute allows the jury, in certain circumstances, to draw “adverse inferences” from the suspect’s silence.
What is a caution and when is this issued to a suspect?
The caution: Formal warning issued to a suspect about their right to silence. Must be issued when:
→ [Before authorising detention] There are reasonable grounds to suspect that person of an offence, before any questions about that offence are put to them
→ [Before questioning] Person is initially questioned not under caution, but their answers give grounds to the suspicion that the person committed the offence
→ [Before arrest] When a person is arrested
→ [Before charge] Before a person is charged or informed that they will be prosecuted
What are the words of caution?
The words of caution:
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 do say may be given in evidence.
What are the interviewee’s options during a police interview?
Interviewee’s options in a police interview
In interview the interviewee then has three options:
1) Provide a pre-prepared statement, setting out their account in whole or in part;
2) Answer questions and provide a full account, or
3) Not answer the questions either by saying nothing or more likely by replying “no comment” to the questions asked.
What adverse inferences can be drawn from the CJPO Act 1994?
Adverse Inferences: The jury may draw ‘such inferences as appear proper’. This is not the same as inferring guilt. A defendant could never be found guilty simply because they remained silent on questioning.
S34: [Not accounting for defence fact] - Person remains silent during interview and raises a defence fact at trial - adverse inference drawn
S36: [Not accounting for objects / substances / marks on person] Failure to account for incriminating objects, substances or marks on their person - adverse inference drawn
S37: [Not accounting for presence] Failure to account for their incriminating presence near the crime scene - adverse inference drawn
What is the effect of s34 CJPOA 1994?
S.34 CJPOA Failure To Mention Defence Facts:
A suspect is being questioned about an offence in interview and they have been offered legal advice. During questioning, the suspect fails to mention a fact that they later rely on in court in their defence. It was reasonable to have expected the suspect to mention that fact during questioning.
Effect: A typical inference to be drawn would be that the account the defendant gave at trial was a subsequent fabrication. In practice, the most common section that is deployed is the failure to mention facts later relied upon: CJPOA s 34.
What are the effects of s36 and s37 CJPOA 1994?
S.36 CJPOA Failure To Account For Objects / Substances / Marks and;
S.37 CJPOA Failure to Account for Presence At The Scene:
Effect: ‘Such interferences as appear proper’ can only be drawn if the suspect was given a special caution before the relevant question was asked. It is irrelevant whether it was reasonable for them to have answered and whether they had legal advice.
What is the effect of s35 CJPOA 1994?
S35 CJPOA Silence at trial
Inferences can also be drawn from silence during the trial process: see, for example, CJPOA s 35, concerning a failure to give evidence.
Effect: The court may draw ‘such inferences as appear proper’ from his failure to give evidence or his refusal without good cause to answer any question.
