This article examines the provisions of the Criminal Justice and Public Order Act 1994 which allow the jury to draw adverse inferences from the accused’s silence in the police station and during trial proceedings. It argues that the current law does not account for possible innocent reasons for silence, creating the risk of wrongful convictions. Furthermore, the law cannot be justified on principled grounds since it undermines the rights of the accused and has a disproportionate impact on vulnerable communities. The article concludes that the relevant provisions of the statute ought to be repealed and that juries should be prohibited from drawing such inferences.
Introduction
The right to silence is a legal principle that entitles anyone accused of having committed a criminal offence to refuse to answer police questions or testify in court. This is an aspect of the right against self-incrimination, under which individuals cannot be legally compelled to provide the state with information that could reasonably lead to prosecution for a criminal offence or be used against them during their trial. The importance of the right to silence is illustrated by the finding in Murray v UK that it forms part of the defendant’s right to a fair trial under Article 6 of the European Convention on Human Rights (‘ECHR’).1 However, the fact that the accused is entitled to remain silent before and during trial does not prevent their silence from being scrutinised by the jury, which may be permitted to draw adverse inferences from the accused’s silence by finding that it is indicative of guilt.2 Therefore, exercising one’s right to silence may often lead to unfavourable legal consequences in the form of a conviction.
The law governing adverse inferences from silence is contained within s 34, s 35, s 36 and s 37 of the Criminal Justice and Public Order Act 1994 (CJPOA). These provisions are premised on the assumption that silence reflects guilt. This article posits that the law fails to accommodate the various possible innocent reasons for the accused’s decision to exercise their right to silence, which creates the risk of wrongful convictions. Furthermore, it advances the argument that the normative underpinnings of the silence provisions cannot be justified on principled grounds since they undermine the rights of the accused and have a disproportionate impact on vulnerable communities. Therefore, it is indefensible that juries are permitted to draw inferences from silence at all. The article concludes that drawing adverse inferences from silence ought to be prohibited. The solution, therefore, is to repeal the silence provisions in the CJPOA.
I. The law governing silence in the police station
s 34 of the CJPOA allows the jury to draw inferences from the accused’s silence in the police station where the accused (i) fails to mention a fact which he could reasonably have been expected to mention after having been cautioned, and (ii) later relies on that fact at trial in his defence. This provision is interpreted rather broadly. The courts have been reluctant to find it ‘reasonable’ for the accused to remain silent in the police station even where they have been advised by their solicitor not to answer police questions. Cases such as Hoare3 and Beckles4 indicate that the accused cannot avoid adverse inferences simply because they genuinely relied on legal advice to remain silent. Rather, the court needs to be convinced that there were objectively good reasons for the accused to have followed such advice. This approach can be criticised on various grounds. First, from a practical perspective, it is absurd to require individuals to conduct an independent assessment of legal advice given by professionals since it defeats the very purpose of hiring a solicitor. Second, from a legal perspective, not only does the accused have a right to access legal advice, but inferences also cannot be drawn under s 34 unless they had the opportunity to do so. This right is rendered meaningless if the accused may be disadvantaged by acting on advice on which they are entitled to rely. Third, there are several legitimate reasons for solicitors to advise silence in the police station that have nothing to do with guilt. In Condron,5 silence was advised since the suspects were experiencing symptoms of heroin withdrawal at the time of the police interview, making it difficult for them to provide cogent answers. In Roble,6 the suspect had a very poor grasp of English, making it difficult for the accused to comprehend and answer the police’s questions accurately. Yet, the jury was allowed to draw adverse inferences in both cases under s 34 CJPOA. This demonstrates an insensitivity towards innocent reasons for the accused’s silence at the police station.
Furthermore, the fact that silence is not considered reasonable even when it has been legally advised may have various ramifications of grave concern for legal advisors. Convincing the jury that it was reasonable for the accused to rely on legal advice to remain silent may require a waiver of legal professional privilege as to consultations with the solicitor.7 This raises several issues. First, requiring disclosure of the correspondence between the solicitor and client may reveal information that is unfavourable to the defendant. This undermines the privilege against self-incrimination which, along with the right to silence, forms part of the ‘generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6’.8 Second, solicitors’ knowledge that advising their clients to remain silent in the police station may render their professional advice vulnerable to scrutiny at trial and thus create the risk of reputational damage can discourage solicitors from acting in the best interests of their clients, even when clients’ best interests lie in remaining silent.9
Third, this approach ultimately side-lines defence lawyers. In effect, the law now views their role simply as facilitators of the expeditious processing of their clients. This diminishes their protective role in ensuring the fair and legal treatment of their clients at the police station.10 Therefore, allowing adverse inferences to be drawn from silence that was legally advised has negative consequences for both the accused and their legal advisors.
It may be thought that prohibiting inferences from legally advised silence may encourage solicitors to advise silence in bad faith in order to prevent the accused’s guilt from being exposed during the police interview. However, this is an unduly unfavourable view of defence solicitors which does not give due regard to their role as officers of the court who are committed to respecting the law. Further, this concern assumes that the public interest lies only in achieving convictions, rather than in ensuring the appropriate investigation and trial of cases by affording suspects and defendants the applicable procedural rights regardless of their guilt or innocence.11
II. The law governing silence during the trial proceedings
s 35 of the CJPOA allows the jury to draw adverse inferences from a defendant’s silence in court. Its wide scope of application is illustrated by the fact that it is the only provision in the statute that views silence alone as deserving of suspicion, provided that a prima facie case has been established by the prosecution and the jury has been appropriately directed. Although judges have the discretion to decide whether to allow juries to draw inferences under s 35, the courts have been reluctant to disapply it. Its wide application in practice is illustrated by Cowan12 wherein the court held that it is only in exceptional cases that a jury should not be allowed to draw inferences under s 35. As a result, neither memory loss owing to an alcohol dependency syndrome in Barry13 nor a fear of reprisals from the co-defendants in Rafik 14 was found to be enough to prevent adverse inferences from being drawn against the accuseds’ silence at trial under s 35. This suggests that the courts are not adequately sensitive to innocent reasons for silence during the trial proceedings, creating the risk of wrongful convictions.
The only meaningful exception to drawing inferences from a defendant’s silence in court is contained within s 35(1)(b), under which such inferences cannot be drawn if ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence’. While this provision has the potential to act as a safeguard for vulnerable defendants who have innocent reasons for remaining silent at trial, its restrictive interpretation by courts has led to procedural unfairness in several cases. There is no accepted definition of ‘undesirable’, which appears to be a deliberate decision to afford the trial judge a wide scope of discretion. Friend (No. 1)15 indicates that courts have tended to focus on whether giving evidence would negatively impact the defendant’s health in determining the desirability of a defendant’s testimony. The court postulated that mental conditions that make it undesirable for the defendant to give evidence may include latent schizophrenia where the experience of testifying might trigger a florid state, whereas physical conditions might include the risk of an epileptic attack being brought on by the experience of giving evidence.16 This appears to suggest that only grave mental and physical conditions which may have a profound effect on the defendant qualify as valid reasons, meaning that mild depression, general anxiety, panic attacks and memory loss will be insufficient.
Friend (No. 2)17 adopted a different approach to determining the desirability of the defendant’s testimony, considering instead the quality of the evidence that the defendant would be able to provide given their mental and physical condition. This signified a step in the right direction, since emphasising the quality of the evidence would indicate whether the defendant’s mental and physical conditions are such that even an innocent defendant may fear that he would undermine his case by testifying and subjecting himself to cross-examination. This approach accounts for the fact that, regardless of the severity of the defendant’s condition, they may exercise their right to silence due to a genuine fear that their underlying conditions may create an unfavourable impression on the jury.
However, the courts have largely continued to adopt a restrictive approach to the exception which focuses on the risks posed to the defendant’s health. The court in Tabbakh18 took into account the importance of the defendant’s evidence when determining whether it was undesirable for the defendant to testify. It appears to suggest that the more important the defendant’s evidence, the more desirable it will be for them to testify even if there exist clear risks to their health.19 Owusu-Bempah rightly argues that this test is unsatisfactory since the defendant’s testimony will always be significant to the jury’s assessment of the case.20 Even if the defendant is simply denying the allegations made by the prosecution without providing any additional information, considerations such as their demeanour when they testify could affect the jury’ decision. As a result, the importance of the defendant’s testimony ought not to be a decisive factor. The best approach is therefore the one in Friend (No. 2) which emphasised the quality of the defendant’s testimony since it illuminates whether the defendant may have a reasonable fear of prejudicing the jury against them.
R v Dixon21 illustrates the unsatisfactory reasons that are generally given by courts in finding that it is not undesirable for defendants with mental health problems, intellectual disabilities, and communication difficulties to testify. In this case, the jury was allowed to draw inferences from the silence of an 18-year-old defendant with ADHD, low IQ, learning difficulties, limited language abilities, poor working memory and anti-social behaviour. An important reason why it was thought not to be undesirable for him to give evidence was that he had been granted an intermediary by the court who would ensure ‘a level playing field’ by assisting the defendant while he testifies.22 However, this assertion can be challenged on two grounds. First, Owusu-Bempah has convincingly argued that owing to the high bar for access to an intermediary, the fact that a defendant is eligible for such special assistance should in itself signal to the court how significant their mental or physical condition is.23 This indicates that the defendant may well have a genuine and reasonable fear of creating an unfavourable impression on the jury if they were to testify, regardless of their guilt or innocence. This increases the likelihood that their decision to remain silent is unconnected to guilt. Second, although intermediaries are helpful insofar as they can repeat and simplify questions for the defendant, their use is limited in the context of those with mental health problems given that they cannot manage the defendant’s emotional reactions or demeanour.
Furthermore, Dixon held that despite the exception in s 35(1)(b) not having applied, a ‘fair-minded jury would take account’ of the defendant’s condition ‘in assessing the weight of his evidence’.24 This can be challenged on two grounds. First, the impulsivity and aggression that the defendant was prone to, owing to his medical conditions, were likely to make him appear unsympathetic to the jury. This may prejudice them against him. Jurors are ultimately ordinary members of the public who may inevitably find it difficult to rid themselves of preconceived biases and take decisions that are purely objective. For instance, research by Scope suggests that a lack of awareness about people with disabilities may cause jurors to misinterpret the demeanour of defendants with learning and sensory impairments.25 Second, even if this were not the case, the fair-mindedness of juries cannot and must not compensate for an unfairness implicit in the law given the unduly and unfairly restrictive application of the exception in s 35(1)(b) by the courts.26 A proper and objective exercise of the juries’ duties is therefore not the solution. The result of this narrow approach has been that vulnerable defendants face the difficult decision of choosing between remaining silent and having adverse inferences drawn against them or testifying and prejudicing the jury against them.
III. The rationales for allowing inferences to be drawn from silence
The evidentiary function
Redmayne has argued that one of the reasons for allowing inferences to be drawn from silence is that it has ‘evidential’ value since silence is an indicator of guilt.27 This is underpinned by what is perceived to be a common-sense assumption that innocent individuals will necessarily be willing to answer police questions and provide a testimony to assert their innocence. This argument may be countered on two grounds.
First, the relationship between silence and guilt is tenuous since there may exist numerous innocent reasons for a suspect or defendant’s decision to remain silent in the police station or at trial. These include a concern that their stress and confusion may make them vulnerable to giving inconsistent answers which might be misinterpreted as deliberate lies, fear of reprisals from the person who actually committed the offence, and apprehension over their unsympathetic character making an unfavourable impression on the jury. The law does not presently give due regard to such possible innocent reasons for silence. Under the common law, the jury can only be directed to consider innocent explanations for silence if the defence adduces evidence to support such explanations.28 This is an onerous requirement given that concrete evidence for the accused’s psychological considerations in deciding whether to answer questions is elusive. Furthermore, adducing evidence which illustrates the accused’s fears may often lead to the realisation of their fears. For instance, if a defendant decides not to testify because they fear reprisals from a co-defendant, how would the defence adduce evidence of this without putting the defendant at risk of the very thing of which they are afraid? Likewise, if the defendant decides not to testify because they fear that they have an unsympathetic character, how would the defence adduce evidence to support this without the defendant testifying and presenting themselves as an unsympathetic person?
Second, both s 38(3) of the CJPOA and the European Court of Human Rights’ decision in Murray v UK29 indicate that silence cannot be the sole or main basis for conviction. Simultaneously, cases such as Condron v UK30 indicate that inferences from silence can only be drawn where the case against the accused is strong enough to clearly call for an explanation. This implies that there must exist evidence other than the accused’s silence which may be sufficient to secure a conviction. Owusu-Bempah has therefore argued that the guilt of the accused may be established without needing to draw inferences from their silence.31 Therefore, silence must be afforded no evidential value.
The incentivising function
Redmayne has argued that the other reason for allowing inferences to be drawn from silence is that it performs an ‘incentivising’ function.32 This implies that the threat of adverse inferences drawn at trial secures the cooperation of the suspect or defendant in the criminal process by encouraging them to respond to the accusations against them. Several criticisms may be advanced against this function on principled grounds.
First, it is inconsistent with the individual autonomy and dignity afforded to citizens of a liberal democracy for the state to compel the accused to cooperate in a criminal process that is designed largely to find them liable for offences.33 It is worth emphasising that even with the introduction of procedural safeguards through laws such as the Police and Criminal Evidence Act 1984, the machinery and resources of the state are positioned against suspects and defendants during the criminal process, creating a congenital inequality of arms. In relation to the privilege against self-incrimination, Redmayne has rightly argued that it is imperative for the accused to be able to distance themselves from the state when it is at its most powerful.34 Similarly, accused persons, whether innocent or guilty, should be free to choose whether and how to respond to accusations made against them.
Second, the possibility of inferences being drawn from silence undermines the presumption of innocence. Since the presumption places the burden of proof on the prosecution at trial, associating the accused’s silence with guilt simply because they have not verbalised their innocence betrays the notion that it is not for the defendant to ease the prosecution’s burden of proof.
Third, it is vital to consider the disproportionate impact that this incentivising feature has had on vulnerable communities. In relation to race, empirical research indicates that there has been a sharp decline in the number of black suspects exercising the right to silence after the enactment of the CJPOA.35 Simultaneously, the number of Black suspects exercising this right remains higher than that of Asian and White suspects.36 This may be explained by the fractured relationship between Black communities and the police, which has justifiably bred mistrust towards law enforcement. This indicates that not only have Black suspects been particularly susceptible to this legislative pressure to speak, but they also continue to face a disproportionate risk of adverse inferences being drawn against them at trial.
Fourth, the previous section of this article has illustrated how the narrow application of s 35(1)(b) disadvantages those with mental health problems, intellectual disabilities, communication difficulties and language barriers. Therefore, the incentivising role performed by the silence provisions cannot be viewed as legitimate due to the various negative ramifications it has from the perspective of fairness. This illustrates that the problem with the current law is not limited to the inadequate consideration of innocent reasons for silence. Its normative foundations cannot be justified in light of the fact that the law undermines the rights of the accused and has a disproportionate impact on vulnerable communities in practice.
IV. The solution
The current law is underpinned by the assumption that innocent individuals will necessarily be keen to answer police questions and provide a testimony so they can assert their innocence. It does not account for the various possible innocent reasons why the accused may decide to exercise their right to silence. This creates the risk of wrongful convictions and disproportionately impacts vulnerable people such as those with mental and physical disabilities. The current law allows juries to consider innocent reasons for silence only where the defence adduces evidence to support this claim, which is rarely possible and often undesirable.
Quirk has suggested that the solution to the problem of the law not accommodating innocent reasons for silence is to direct juries to possible innocent reasons for the defendant’s silence.37 This approach is intuitively more desirable than the current law, which requires concrete evidence of the specific reasons why the defendant remained silent. However, this proposal is unsatisfactory. It is premised on the assumption that the jury is capable of distinguishing between instances where silence is innocent and those where it is indicative of guilt. The foregoing discussion has illustrated that there are myriad reasons why the accused may choose to remain silent which are not obvious to third parties who are unfamiliar with the specific circumstances of the accused. While juries inevitably form opinions in criminal trials, any inferences drawn must have a sound evidential basis in the information presented to them. The result of giving the jury a general direction that there often exist innocent reasons for silence without providing any concrete evidence of the same in relation to the case at hand is that the jury will engage in a speculative assessment of the possible reasons why the defendant may have remained silent. This would allow room for arbitrary decisions, which runs counter to the trial objectives of securing verdicts that promote certainty and fairness. Therefore, this proposal would encourage arbitrary speculation and contravene the appropriate role of juries in the absence of decisive evidence which is generally elusive. This illustrates that the law allowing adverse inferences to be drawn from silence is incapable of accounting for situations in which the accused remains silent for reasons unconnected to guilt.
One may suggest that the solution lies in modifying the current law to minimise the negative ramifications of its application. In relation to s 34, the courts may find it reasonable for the accused to remain silent at the police station where they have genuinely relied on legal advice to do so. With reference to s 35, the courts may interpret the exception in s 35(1)(b) broadly by recognising that defendants with mental and physical conditions may legitimately decide to remain silent despite the presence of an intermediary. However, these solutions are unsatisfactory since the difficulties with the current law are not limited to the insensitivity towards innocent reasons for silence.
The previous section of this article has illustrated that the normative underpinnings of the silence provisions cannot be justified on principled grounds. First, silence cannot be thought of as carrying significant evidential value since it often reveals nothing about possible guilt or innocence. The law also requires that there be enough evidence in a trial for a conviction to be secured without inferences being drawn from silence. Second, it is indefensible that the law seeks to compel the accused to participate in the criminal process, particularly since it is inconsistent with individual autonomy and dignity, undermines the presumption of innocence and disproportionately impacts the Black community.
The issue is therefore not simply that individual cases are decided incorrectly by permitting juries to draw adverse inferences from the accused’s silence in inappropriate circumstances. Rather, the issue is that juries are permitted to draw adverse inferences from the accused’s silence at all. By way of analogy, it is not simply that certain apples are rotten but that the tree is poisoned. Plucking individual apples is not a satisfactory solution; the entire tree ought to be uprooted. Therefore, the accused’s right to a fair trial enshrined in Article 6 of the ECHR, if taken seriously, requires that the drawing of adverse inferences from their silence be prohibited. This can only be done by repealing the silence provisions of the CJPOA which allow such inferences to be drawn from silence in the police station and at trial. Furthermore, judges must explicitly direct juries not to draw inferences from silence and provide reasons for the same.38 This would ensure that they are made cognisant of the risks associated with drawing inferences from silence and are reminded of the appropriate roles of the prosecution and defence, making it more likely for them to follow the judge’s direction.39
Conclusion
The problems with the silence provisions in the CJPOA are twofold. First, the current law does not accommodate instances where the accused’s silence is entirely unconnected to guilt, creating a risk of wrongful convictions. Second, the law cannot be justified on a principled basis since it undermines the rights of the accused and has a disproportionate impact on vulnerable communities. Therefore, the solution is to repeal the silence provisions and prohibit juries from drawing adverse inferences from the accused’s silence before and during the trial.
[1] Murray v The United Kingdom (1991) 18731 EHRR 91 (Commission Decision).
[2] Criminal Justice and Public Order Act 1994, ss 34-37.
[3] R v Hoare and Pierce [2005] 1 WLR 1804.
[4] R v Beckles [2004] EWCA Crim 2766.
[5] Condron v The United Kingdom (2001) 31 EHHR 1 [44].
[6] R v Roble [1997] Crim LR 449 [J].
[7] Mike Redmayne, ‘English Warnings’ (2008) 30 Cardozo Law Review 1067.
[8] Murray v The United Kingdom (1996) 22 EHRR 29 [45].
[9] Hannah Quirk, ‘Twenty Years On, the Right of Silence and Legal Advice: The Spiralling Costs of an Unfair Exchange’ (2013) 64 Northern Ireland Legal Quarterly 465, 481.
[10] Ed Cape, ‘Sidelining Defence Lawyers: Police Station Advice after Condron’ (1997) 1(5) The International Journal of Evidence and Proof 386.
[11] Quirk (n 9) 477.
[12] R v Cowan [1996] QB 379 [D].
[13] R v Barry [2010] EWCA Crim 195.
[14] R v Rafik [2014] EWCA Crim 2544.
[15] R. v Friend (Billy-Joe) (Appeal against Conviction) (No.1) [1997] 1 WLR 1433 [A].
[16] ibid 1422 [H].
[17] R. v Friend (Billy-Joe) (Appeal against Conviction) (No. 2) [2004] EWCA Crim 2661 [25].
[18] R v Tabbakh (Hassan) [2009] EWCA Crim 464.
[19] ibid [8].
[20] Abenaa Owusu-Bempah, ‘Judging the Desirability of a Defendant’s Evidence: An Unfortunate Approach to s.35(1)(b) of the Criminal Justice and Public Order Act 1994’ (2011) 9 Criminal Law Review 690.
[21] R v Dixon [2013] EWCA Crim 465.
[22] ibid [39].
[23] Abenaa Owusu-Bempah, ‘How to Reinstate the Right of Silence’ in John J. Child and R. Antony Duff (eds), Criminal Law Reform Now (Hart 2018) 274.
[24] R v Dixon (n 21) [39].
[25] ‘The Disability Perception Gap’ (Scope, 2018) <https://www.scope.org.uk/campaigns/disability-perception-gap/> accessed 25 March 2021.
[26] Owusu-Bempah (n 23) 274.
[27] Redmayne (n 7) 1051.
[28] R v Cowan [1996] QB 373 [380].
[29] Murray v The United Kingdom (n 1) [47].
[30] Condron v The United Kingdom (n 5) [61].
[31] Owusu-Bempah (n 23) 271.
[32] Redmayne (n 7) 1051.
[33] Owusu-Bempah (n 23) 272.
[34] Mike Redmayne, ‘Rethinking the Privilege Against Self-Incrimination’ (2007) 27(2) Oxford Journal of Legal Studies 209.
[35] Tom Bucke, Robert Street and David Brown, ‘Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994’ (United States Department of Justice, 2000) <https://www.ojp.gov/ncjrs/virtual-library/abstracts/right-silence-impact-criminal-justice-and-public-order-act-1994> accessed 25 March 2021.
[36] ibid.
[37] Hannah Quirk, ‘The Case for Restoring the Right of Silence’ in John J. Child and R. Antony Duff, Criminal Law Reform Now (Hart 2018) 268.
[38] Owusu-Bempah (n 23) 277.
[39] ibid.
Ananya Jain
LLB (LSE) ‘22