Silence Flashcards
What is the general rule regarding the right to silence
no one can be compelled to answer questions where the answer might implicate them in an offence
What does the Sexius case say regarding the right to silence
that there is no universal or absolute right to silence. what is often described as the right of silence comprises a number of difference rules, most of which are qualified.
what does the current law say it is fair to do?
draw adverse inferences in certain circumstances where an individual chooses to remain silent
Why is there a privilege against self-incrimination?
because it is the task of the prosecution to prove the guilt of the accused, the latter does not have to establish their innocence.
What are the three scenarios in which adverse inferences can be drawn from silence?
- failure to mention something you later rely on in court
- failure to account for suspicious objects, substances, marks or presence
- failure to give evidence at trial
Which legislation allows inferences to be drawn from failure to mention something which they later rely on in court?
s34 CJPOA 1994
Which legislation allows inferences to be drawn from failure to account for objects?
s36-37 CJPOA
Which legislation allows inferences to be drawn from failure to give evidence at trial?
s35 CJPOA
When can a suspect mention a fact that constitutes avoiding adverse inferences? Which case says this?
Where they mention the fact in a prepared statement
Knight 2004
What does the Nickolson 1999 case say about fact?
it means anything that D claims to be a fact - not speculative possibility
Describe the Lewis 2018 case
the suggestion that a family member’s going to scene of crime might explain finding of DNA was ‘explanation of a crucial piece of evidence
What may discrepency between facts in statements-interview and evidence be dealt with as? which case says this?
Lies rather than fact
Turner 2004
Give the facts of Howell 2005
the suspect was advised by his solicitor to give a no comment interview. the court said that despite this, he should have answered the questions.
What did Laws LJ say in Howell 2005?
There must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police.
What is said by Auld LJ in Hoare 2004?
the whole basis of section 34 is an assumption that an innocent defendant would give an early explanation to demonstrate his innocence
