The Right of Silence Flashcards
What is the relevant legislation in respect of the right to silence in Scotland?
The Criminal Justice (Scotland) Act 2016
Are persons in police custody required to answer questions
s. 5(2)(a) of the Criminal Justice (S) Act 2016
- states that no person in police custody is required to say anything
What is the exception to the rule on s.5(2)(a) of the Criminal Justice (S) Act 2016?
s. 34(4) of the CJ(S)A 2016
- That every person is required to answer questions in relation to:
(a) their name
(b) Their Address
(c) D.O.B
(d) place of birth
(e) nationality
What does s.31(2) Of the CJ(S)A 2016 require police to do?
Any person in police custody must be notified one hour before they are interviewed about an offence:
s. 31(2)(a) - the general nature of the offence
s. 31(2)(b) - that they are under no obligation to say anything other than compulsory information under s.34(4)
s. 31(2)(c) that person’s right to have access to a solicitor during a police interview per section 32
What are the only exceptions to a persons right to a solicitor?
s. 32(4)(a) and (b) - where an interview is required to be done without delay and in the interests of the prevention of crime or apprehension of offender
s. 32(3)(a) - where a person consents to being interviewed without a solicitor present
If a person waives their right to a solicitor under s.32(3) of the CJ(S)A 2016 what must be done?
s. 32(7)(a) where person waives their right to a solicitor the time must be recorded when they consented
s. 32(7)(b) Any reason given by the person waiving their right must be recorded
Under the Criminal Justice (Scotland) Act 2016 what does s.44(1) provide for and what are the exceptions to this section?
- Under s.44(1) a person in police custody has the right to private consultation with a solicitor at any time
- the only exception to this is under s.44(2) where under exceptional circumstances a delay is necessary in the interests of:
(a) investigation or prevention of crime
(b) apprehension of offenders
What is significant about the right to silence in relation to Art.6 of the ECHR?
That despite not being stated in the ECHR, the right to silence is an implicit element of the right to a fair trial
Chalmers v HM Advocate 1954
CASE WHERE ACCUSED GAVE EVIDENCE THAT SHOWED HE HAD COMMITTED MURDER BUT COURT RULED IT TO BE INADMISSIBLE AS HE WAS NOT OBLIGED TO SPEAK
FACTS
- Appellant was under suspicion of having committed murder
- Without any charge being made police cautioned and questioned the appellant in regard to information he had previously given
- He was then cautioned again by police and made an incriminating statement to them and led them to a field where the murdered victim’s purse was
- Appellant was then charged by police and made another statement
HELD
- On appeal it was held that it was not for the police to obtain a confession from a person held in custody so it could be used at trial
- Lord Justice General stated that the police have the right to question persons with a view of gathering info of criminal activity
- He further stated however that when that person became a suspected perpetrator then questioning should no longer continue
- any further questioning would amount to cross-examonation which would most certainly be excluded
- The court felt that this was necessary in order to preserve the right against self incrimination
- The court held that not only was the fresh statement inadmissible but all of the statements which led up to the giving of that statement were also, including evidence from the field
Cadder v HM Advocate 2010
CASE WHERE EVERY SUSPECT MUST BE MADE AWARE OF THE RIGHT TO RECEIVE LEGAL ADVICE ON ARRIVAL AT POLICE STATION BEFORE QUESTIONING BEGINS
FACTS
- The Crown relied on admissions made by Cadder without a solicitor present, admissions which would help Crown obtain a conviction
- Cadder argued his right to a fair trial had been breached
HELD
- Appeal allowed
- The authority of Salduz v Turkey 2008 held that it was breach of article 6 for an accused not to have legal assistance whilst being questioned
- It confirmed that the ECHR requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed
- The Court had no option but to follow the decision of Salduz thus making it a breach of an accused’s right to a fair trial not to have access to legal advice from the first interview
Summarise what Cadder has now implemented in Scotland?
- Where an accused person is interviewed by police, and subsequently makes admissions which are self-incriminatory, or provides police with information from which they obtain incriminating evidence;
- that evidence of self-incrimination shall be struck out as a general rule
Hogan v HM Advocate 2012
- Judge directed jury that absence of evidence from an appellant about incriminating matters within his knowledge might make it easier to accept other evidence on these matters or to draw inferences of guilt than if he had provided an explanation
- The judge stated that the jury may draw inferences to appellant’s silence if they “were matter which you may think he should have acknowledged”
HELD - The Sheriff had misdirected the jury
- The Crown’s case rested solely on testimony of X, who the appellant chose not to rebut against
- The Sheriff proceeded to direct the airy that absence of evidence from the appellant might make it easier to accept X’s evidence or to draw inferences of guilt
- It was held there was a real danger the jury would find X’s evidence significantly supported by lack of evidence from the accused and their verdicts were materially affected
What did the High Court decide in Brown v Stott 2000?
FACTS
- Driver was suspected of being drunk and having driven her car
- She was questioned by police under the Road Traffic Act who had been driving the vehicle, and was obliged to answer under that provision
- She made an incriminating statement by admitting she had been driving the car
- Per the legislation she had no right to remain silent and the reply she made could be used against her in criminal proceedings
HELD
- International standards recognise the right to remain silent as the right not to incriminate oneself at trial as well as at the stage of being a suspect being questioned in a criminal investigation
- Obliging the suspect to answer an incriminating question would be a breach of Art.6 if the Crown sought to rely on that answer at trial
- IN THIS CASE IT WAS HELD POLICE MAY STILL OBLIGE THE KEEPER OF THE VEHICLE TO ANSWER QUESTION AS TO WHO WAS THE DRIVER BUT THAT ANY INCRIMINATING ANSWER GIVEN MAY NOT BE RELIED UPON BY THE CROWN IN CRIMINAL PROCEEDINGS
What did the Privy Council decide in the case of Brown v Stott 2001?
- APPEAL ALLOWED
- Right under art.6 was absolute and could not be compromised
- The right to silence and privilege against self-incrimination was not absolute
- Where it was necessary to achieve a legitimate aim within the public interest the privilege could be subject to limited qualifications
- The Court’s reasoning being that there was huge public interest in maintaining road safety and preventing motor accident which in this instance outweighed the right to silence
What are the benefits of a strong right of silence?
- The risk of false confessions are minimised
- Where vulnerable clients are present in police custody it provides a safeguard from being coerced or intimidated in to giving answers
- No right of silence or a qualified right creates a ‘cruel trillema’ for an: danger of self-incrimination, feeling compelled to lie, or having adverse inference drawn from silence
