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The 'right to silence' of a person accused with a criminal offence is a fundamental, long-standing principle of English klaw. It is closely related to the principles that the defendant is 'innocent until proven guilty', and the privilege against Self-incrimination. All these principles are predicated on the assertion that, in an allegation of criminal behaviour, the onus is on the state to construct a compelling case. The defendant need do nothing; it is not his job to prove his innocence, or even to provide a defence.
This article discusses the recent changes to the law on the right to silence in the light of the earlier, common-law provisions; it then describes some particularly contentious issues in this area -- the consequences of remaining silent on the basis of legal advice, and the impact of the human rights act (1998).
There are two main aspects to the right to silence that are important for the purposes of this discussion: the right to remain silent under questioning from the police or other officials, and the right to remain silent at trial. The connection between these two issues is the question whether a person who remains silent at interview, but chooses to testify at trial, can have his earlier silence used as evidence against him.
At common law, a suspect could, and still can in most cases, refuse to answer questions put to him during a criminal investigation, at least to the extent that he is not committing a particular offence by following this course of action. From time to time specific statutes have been introduced which remove this immunity from prosecution but, on the whole, these have fallen foul of the UK's obligations under Art. 6 of the Echr (see, for example, SaundersVUnitedKingdom1996). However, it appears (e.g., RVHertfordshireCountyCouncilExParteGreen2000) that it is not the compulsion to answer questions which creates the breach of Art. 6, but the subsequent use of the evidence so obtained. In any event, for the most part a suspect cannot be prosecuted for refusing to answer questions.
At trial, the position was very similar. The defendant could not be compelled to testify and, if he did not, he was entitled to have the jury directed that no adverse inference should be drawn from his silence.
It is the issue of remaining silent during questioning, and then breaking silence during trial, that has caused most difficulties. In the last 20 years or so, it became increasingly obvious that the right to silence during questioning affords greater protection for the guilty than it does for the innocent. A particular problem has been the use of the 'Ambush defence', which exploits the right to silence in a particularly cynical way. In R v alladice (1988) Lord Lane CJ complained that the combination of disallowing juries from drawing adverse inferences from silence, and refusing to allow a suspect to be questioned without legal advice, created too great an advantage for the defendant. If a defendant was, for example, unable to account for his presence at the scene of the crime, and was advised by his solicitor to refuse to answer any questions on the subject, then he would have time to concoct an explanation in time for the trial. However, it is not the presence of legal advice that creates this advantage for the defendant, it is the right to silence itself -- what Lord Lane seems to be arguing for is withholding from defendants knowledge of their fundamental rights.
Be that as it may, a number of legislative changes were made to reduce the reliance that could be placed on the right to silence, culminating in the Criminal justice and public order act (1994) (CJPOA).
The CPJOA allows the court to 'draw such inferences as appear proper' from the defendant's silence in the following cases:
- failure to mention a fact when questioned, which the defendant might reasonably have been expected to mention, and which is used in his defence (at s.34);
- refusal to testify in his own defence in court or, having taken the oath, to answer questions without good reason (s.35);
- failure to account for objects, substances of marks found on his person (s.36).
- failure to account for being in a particular place at a given time (s.37);
To reflect this change in the legal status of silence, the official caution (see: Cautioning before interview) to be used by the police now warns suspects that failure to answer questions may be harmful to the defence.
Although the CJPOA does make substantial inroads into the right to silence, the right is not 'abolished', as many commentators have suggested. In particular:
- exercising a right to silence never consitutes a 'case to answer' in itself: the prosecution must still establish a case that is acceptable to the court (s.38(3));
- exercising a right to silence is never grounds for conviction, in the absence of other evidence (s.38(3));
- where there a statutory provision that a person's words or actions cannot be used in evidence of some offence, this provision is not affected (s.38(5)).
Judicial reaction to the CJPOA
There was some uncertainty in the courts in the years immediately following the introduction of the CJPOA. Some judges were keen to uphold the traditional common-law right to silence, and 'read down' the new provisions to limit their impact. However, in R v cowan etc (1996) the Court of Appeal made it perfectly clear that the CJPOA was intended to change, not clarify, the law. However, the Court of Appeal also made it obvious that, even where this change was given due recognition by a Court, there was still a necessity to direct the jury appropriately on the implications of the defendant's silence. Although adverse inferences could be drawn from silence during police questioning, a jury had to be directed that silence itself was not an admission of guilt, and that there might be other, valid reasons for the defendant's silence.
However, the decision in Cowan still left judges with considerable discretion. In R v argent (1997), the Court of Appeal pointed out that inferences could only be drawn under s.34 from refusal to mention a fact that could 'reasonably be expected'; and that the jury should keep in might what 'reasonably' might mean for the particular defendant in the particular circumstances. In R v bowden (1999), for example, Lord Bingham CJ stated that the provisions of the CJPOA, encroaching as they do on fundamental rights, should be construed no more widely than the statutory language allows. In R v mc garry (1999), the Court of Appeal went as far as to state that, where the defendant makes no comment from arrest to trial, not only may adverse inferences not be drawn under s.35, but the jury must be positively directed not to draw inferences from silence. However, not all judges have been so protective of the defendant. In R v gowland wynn (2001), for example, the Court of Appeal did not interfere with a trial judge's inviting a jury to draw inferences about the defendant's silence on an issue that was central to his defence.
It was not long before it became clear that, even with proper judicial direction, there was scope for the CJPOA to compromise Art. 6. In particular, in Murray v united kingdom (1996), the European Court ruled that drawing adverse inferences from silence during questioning, combined with withholding access to legal advice, could amount to a breach of Art. 6. Subsequently, the Youth Justice and Criminal Evidence Act (1999) ammended ss. 34 and 36-37 of the CJPOA to prevent adverse inferences being drawn from silence before the defendant received legal advice. The knotty problem of the defendant who refuses to answer questions as a result of legal advice is something we shall come on to later.
s.34 of the CJPOA -- failure to answer questions -- affects not only silence at interview, but silence during any questioning under caution. While it seems fairly clear that s.34 only bites if the defendant has been cautioned, it is less clear whether it can be engaged by questioning outside a formal interview. Nothing in the Act prevents its being engaged, although the issue does not yet seem to have arisen in the courts. Moreover, if the interview itself is excluded under s.78 of PACE -- and R v park (1994) suggests that it might be -- then it is not clear whether the prosecution could even raise the matter of the defendant's silence at a pre-caution interview.
In principle, s.34 only applies to refusal to provide information which is subsequently used by the defendant as part of his case. Refusal to answer questions per se does not engage s.34. It is therefore possible that a court will be required to rule on the evidential value of a failure to answer a specific question although, again, this does not seem to have been a problem so far. s.34 does not require the defendant to raise facts during questioning of his volition, and if he is invited during cross-examination to speculate about some piece of evidence tendered by the prosecution, this does not amount to 'relying on some fact in his defence' (R v nickolson (1998)).
The very nature of the changes imposed by the CJPOA made it inevitable that it would be challenged, particular under Article 6, which deals with the right to a fair and impartial trial. However, in Murray v united kingdom (1996) is was recognized that the right to silence is not absolute, and there will be circumstances in which it is proper to use the defendant's silence as an item of evidence. These circumstances include those in which an explanation is clearly called for from the defendant, and might include those within the scope of s.36 and 3.37. Although this case was heard before the introduction of the 1994 Act, the relevant legislation at the time (Prevention of Terrorism (Temporary Provisions) Act (1989)) had provisions regarding the right to silence that were very similar to the more modern Act.
More recently, Condron v united kingdom (2001) held that, notwithstanding Murray, drawing adverse inferences from silence could be in breach of Article 6. In this latter case, it was held that a jury could only draw adverse conclusions from the failure of the defendant to answer questions if it had been shown that the only credible reason for failing to answer was having no answer.
If a defendant chooses not to answer questions during questioning, or chooses not to account for his presence at the scene of crime, and later gives evidence in his defence, then then ss.34 or 36-37 will be engaged. However, if a defendant receives legal advice, and that advice is that the defendant should remain silent, how does this affect the operation of s.34, etc? Although earlier cases seemed to suggest that adverse inferences could not be drawn if a defendant remained silent on legal advice, this no longer seems to be the case. In Condron it was suggested that the fact that the defendant had been advised to remain silent was a factor which the jury should consider where assessing the validity of the defendant's silence, but it was not the only factor. A bare assertion that the defendant remained silent on the advice of his solicitor would not carry much weight. However, in order that the jury be able to assess the extent to which the solicitor's advice influenced the defendant's actions, the jury would need to have some information about why the solicitor advised silence (RVRoble1996) in the first place. It is unclear whether the defendant can provide the jury with this information. First, the rule against Hearsay may prevent the admission of the solicitor's advice. Second, even if the advice is admissible, tendering this advice as evidence may well have the effect that the defendant waives lawyer-client privilege (Bowden), which will allow the solicitor to be compelled to give evidence for the prosecution.
The right-to-silence provision of the CJPOA have come under considerable scrutiny. In its favour can be said that the Act has reduced the ability of the guilty to use technical defences (e.g., ambush) to evade prosecution, and in any case the right was exercised only infrequently. It can be argued that, if the ability to use ambush defences is curtailed (perhaps through more comprehensive rules on disclosure), retaining the right to silence would offer little effective protection to the defendant. If that is the case, then it might be better for those people concerned with protecting the rights of the defendant to fight on a different front altogether.
In criticism, it has to be noted that it does effectively remove one of the ancient rights of protection of the individual against the state. Moreover, rightly or wrongly, it is claimed that the changes tend to shift the burden of proof from the state to the defendant. The Act undoubtedly reflects a change in the constitutional relationship between the individual and the state.