Inferences from Silence Flashcards
Privilege against self-incrimination
Person interviewed as a suspect can’t be compelled to answer questions
Witness giving evidence can’t be compelled to answer questions where answer might implicate them in an offence
Applies to all civil proceedings
Also to defendant who chooses to give evidence in a criminal trial, so far as questions might tend to implicate them in other offences.
Right to silence
Generally, no duty to answer police questions (
No duty to answer questions when questioned under caution
Defendant not compellable as a witness
Before 1994, right taken to imply that no adverse inferences (inferences supporting conviction) could be drawn from silence, in interview or in court
i.e. juries had to be directed in this way
Why is there this privilege / right?
Presumption of innocence interpreted as meaning prosecution has to prove guilt without the assistance of the accused.
Some defendants make poor witnesses – protection against conviction based on performance in the witness-box
“Cruel trilemma” – if compulsory to answer questions, D may face choice between
1) Confession and punishment
2) Silence and punishment
3) Lies (or disbelieved truth) and punishment for perjury.
Adverse inferences from silence
Before 1994, juries directed not to draw inferences from declining to give evidence.
CJA 1994 allows four types of adverse inference (i.e. treating silence as evidence of guilt):
1) From failure to mention when questioned some fact later relied on in evidence (s. 34)
2) From failure to account for incriminating objects, substances or marks (s. 36)
3) From failure to account for presence at a particular place (s. 37)
4) From failure to give evidence at trial (s. 35)
Criminal Justice & Public Order Act, S.34 - ‘on being questioned’
Green 2019 - “The defendant is questioned … if the circumstances are such that he is expressly or by necessary implication invited to give his account of the matter which has given rise to the interview. It is not necessary that specific questions are asked of him.
Essentially allowed to give your account of the matter and you arent asked specific questions
However inference can be drawn if you don’t mention some fact that you then later presented evidence at court
Criminal Justice & Public Order Act, S.34 - ‘under caution’
Code of Practice C, para 10.5
“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.”
Explanation of the caution from police may increase pressure to answer (Quirk, The Rise and Fall of the Right to Silence pp. 62-7)
Criminal Justice & Public Order Act, S.34 - ‘failed to mention any fact relied on’
A way to to avoid adverse inferences is through a ‘mentioning’ any fact in prepared statement
Knight 2004 - no inference can then be drawn from failure to answer questions.
Harewood & Rehman 2022 - But inferences may be drawn from omission of facts from the statement – whether or not specifically questioned about them
Nickolson 1999 - “Fact” means anything D claims to be a fact
Criminal Justice & Public Order Act, S.34 - ‘which in the circumstances existing at the time’
Argent 1997 - “The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant.”
BASICALLY it should be interpreted broadly and whether it would be reasonable to expect someone to answer those questions in those circumstances
Criminal Justice & Public Order Act, S.34 - ‘the accused could reasonable have been expected to mention’
Argent 1997 - ‘When reference is made to ‘the accused’ attention is directed not to some hypothetical, reasonable accused of ordinary phlegm and fortitude but to the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time. It is for the jury to decide whether the fact …[is one] which in the circumstances as they actually existed the actual defendant could reasonably have been expected to mention.”
BASICALLY doesn’t mean any reasonable person but the particular defendant in those circumstances and whether they would have reasonably been expected to mention whatever facts when questioned by the police
McGarry directions
McGarry 1999 - Where s. 34 doesn’t apply – e.g. because D made prepared statement and doesn’t introduce new facts at trial – jury should be directed not to draw adverse inference
R v RT 2023 - Court must advise the jury not to make any adverse inferences when the defendant is silent and offers no comment in interview
Legal advice minefield
Beckles 2005 - if genuinely and reasonable relied on legal advice, no inferences can be made
CJA & POA 1994 - S.35 - silence at trial
D can’t be compelled to testify but any proper inference can be drawn from declining to give evidence, or to answer any question.
Judge tells accused presence of jury that time has come to give evidence if so wishes, and that inferences may be drawn.
HOWEVER Doesn’t apply if “the physical or mental condition of the accused makes it undesirable to give evidence”
CJA & POA 1994, S.36
Section 36 permits the court or jury to draw an interference, if when interviewed by the police, the defendant failed to account for the presence of an object, substance, or mark.
Special caution must always be offered
CJA & POA 1994, S.37
Section 37 allows the court to draw interference if, when questioned at the police station, they failed to account for their presence at a particular place.
When can an inference be drawn?
For an inference to arise, the following steps must be taken:
1) The judge must tell the jury that the burden of proof remains on the prosecution throughout.
2) The right of silence and the freedom not to testify remain.
3) An inference cannot in itself prove guilt –> Murray v the United Kingdom (ECHR article 6)
5) Only if the jury then concludes that D’s silence can “only sensibly be attributed” to D having no answer (or none that would stand up to cross-examination) may they draw an inference
