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

Analysis of the question:

This is an area where, in order to perform well in the examination, you will need to have read beyond the textbooks and your lecture notes. The right to silence as an ingredient of the privilege against self- incrimination has prompted a huge amount of academic theoretical discussion. In writing the essay, you should make reference to some of these writings and comment on the still lingering controversies over the changes brought about in the CJPOA 1994. Note that the question centres on inferences from silence, which indicates the centrality of these statutory changes. It follows that silence under the common law, where silence in the face of an accusatory statement and where the parties are on even terms (see R v Osborne (2005), should merit no more than a background reference. You should explain that although the relevance of silence in the face of an accusation is acknowledged here, a state actor is not necessarily involved. Explain in your introduction that inferences on silence in the case of intervention by the state may be drawn at both the pre-trial and trial stages, although the former is the more controversial area.

The question does not specify what the components of a fair trial are 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. A very powerful analysis is included in Roberts and Zuckerman (2010). They suggest (pp 18–25) that the foundational principles of criminal evidence should include: 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 typology 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 in 1994. Here the examiner is looking for your own analysis of the issue, but you will gain credit for citing the existing literature. Dennis (Criminal Evidence, Sweet and Maxwell, 5^th edn 2013 pp 197- 209) made a powerful case for the repeal of s34 CJPOA. A possible structure for the essay is to set out the arguments for and against the proposition that the current law is unfair.

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

• Privilege against self-incrimination is an ancient common law value which upholds the principle of minimum state intervention. As Dennis (2013) explains, it has been connected to the presumption of innocence, the right to privacy, safeguarding against wrongful convictions, protection for the suspect from cruel choices at interview and finally legitimacy and the abuse of power. Dennis argues that the latter justification is the most compelling of the rationales since ‘there is an inherent danger of unfairness in the state exploiting its enforcement power to place an individual in a vulnerable position’(p. 197). He states that s34 should be repealed ‘as a matter of principle’(p. 199).
• 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. See R v Bowden (1999)
• 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 ( 2020 p 124 ) comments that ‘it would undermine the fundamental importance accorded by the law to the right to legal advice if a suspect who was advised to remain silent was required in effect to make his or her own assessment of the quality of that advice’.

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

• 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 see s 38 YCJEA 1994. In addition, the PACE Codes, especially recording of police interviews, put restraints on police actions.
• Fair trial rights apply to victims as well as defendants and the law, as it arguably increases the chance of conviction of the guilty. It defies common sense not to accept that if there is an exculpatory explanation for the suspect’s behaviour an innocent person would give it at the earliest opportunity.
• The Strasbourg court has held that the right to silence is not an absolute right under Art 6 see Murray v UK (1996).
• 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.

Conclusion:

You might here refer to the body of academic debate and alternative proposals to deal with ambush defences. Since as the law stands the suspect at interview has re is an information asymmetry, this might include full disclosure by the police at interview. It is troubling that the case may be won or lost at interview and that the proceedings in effect start at this early stage where natural justice principles do not fully apply.