Is the current law on drawing inferences from silence a violation of the right to a fair trial?

The scope of the question:

The question does not specify what are the ingredients of a fair trial and so you would be entitled to draw on Art 6 ECHR as offering one possible set of guidelines but you should make it clear in your answer that the Article is a minimum rather than a maximum list of essential features. You could in your introduction point out that fairness is a contested concept and that, as s78 PACE demonstrates, may include fairness to the trial i.e. is not narrowed to fairness to the defendant. Thus any meaningful answer would have to include your own evaluation of what is a fair trial. You should have read some of the academic literature on this – a very powerful analysis is for example included in Roberts and Zuckerman (2010). They suggest (pp 18–25) that the foundational principles of criminal evidence should be: promoting factual accuracy, protecting the innocent from wrongful conviction, liberty or minimum state intervention, humane treatment, and maintaining high standards of propriety in the criminal process. Such a framework might provide a conceptual framework for your essay, alongside more specific references to Art 6. Your introduction should then outline the current state of the law and the changes brought about in YJCEA 1994.

A possible plan is:

Arguments to support the view that ss34–38 CJPOA violate fair trial rights:

• Privilege against self-incrimination is an ancient common law value which upholds the principle of minimum state intervention, i.e. it is connected to the presumption of innocence.
• Inferences from silence are ambiguous, since people can be silent for reasons other than guilt and therefore factual accuracy may not be maintained and the innocent be convicted.
• The effect of the changes to the law is that the defendant, if explaining that he was silent on legal advice, may be held to have waived his right to legal professional privilege, arguably this is a key aspect of the rule of law upheld in the principle of maintaining high standards of propriety in the criminal process.
• The law has generated excessive case law and is difficult to apply, particularly in relation to silence on legal advice – see the conflict between R v Betts and Hall [2001] and R v Howell [2003]. Choo (2012, p143) points out that the difficulties of administering the provisions on silence are arguably disproportionate to the benefits they bring to the prosecution.

Arguments to support the view that ss34–38 do not violate fair trial rights:

• The Strasbourg court has held that the right to silence is not an absolute right under Art 6 see Murray v UK (1996).
• There are safeguards e.g. the defendant cannot be convicted on silence alone and has to have access to legal advice before the provisions apply s 38 YCJEA 1994.
• Fair trial rights apply to victims as well as defendants and the law increases the chance of conviction of the guilty.
• The law has been interpreted in favour of the defendant in a number of cases eg R v Knight [2003] in relation to written statement being accepted as responding to police questions. See also R v Argent (1997) where the Court of Appeal stressed that the specific circumstances of the suspect must be taken into account in deciding whether it is appropriate to allow an inference of guilt to be drawn from failure to respond to questioning.
• S78 PACE is available to exclude evidence of silence.
• Note the research by Redmayne (2007) that if a fair balance is achieved between  the suspect’s rights and the drawing of adverse inferences that s34 will be Convention compliant.

Conclusion:

Choo (2015, p 140) refers to criticism of the operation of 34 and its growing body of case law. He also points out that the section ‘has been held to be compatible with the European Convention on Human Rights so long as a sufficiently watertight direction is given to the jury.’ You might here refer in the conclusion to the body of academic debate and alternative proposals to deal with ambush defences. This might include full disclosure of the case by the police to the suspect. Dennis (2013, pp 206-208) makes a powerful critique of the law in this area. He calls for the repeal of s34 ‘as a matter of principle’ (p2008).