Does the defendant have a Right to Silence?

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What are the 6 conditions in R v Argent [1997] ?

In R v Argent [1997] 2 Cr.App.R. 27, Lord Bingham set out the six formal conditions that must be satisfied before an adverse inference can be drawn:

  1. There must be proceedings against a person for an offence;
  2. The alleged failure to mention a fact at trial must have occurred before charge, or on charge;
  3. The alleged failure must have occurred during questioning under caution. (Refer to Archbold 15-484 to 15-486 on the question of when a suspect should be cautioned.);
  4. The questioning must have been directed to trying to discover whether or by whom the alleged offence was committed;
  5. The alleged failure of the accused must have been to mention any fact relied on in his defence in those proceedings;
  6. The alleged failure must have been to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned.
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What was established in R v Howell [2003]?

R v Howell [2003] Crim.L.R. 405 determined that "In the circumstances," has been construed to include, when relevant: 

  • time of day,
  • defendant's age,
  • experience,
  • mental capacity,
  • state of health,
  • sobriety,
  • tiredness,
  • knowledge,
  • personality and
  • legal advice might all be relevant. 
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When can adverse inferences be drawn?

A court can draw an adverse inference from a defendant's silence in circumstances as set out in sections 34 to 37 Criminal Justice and Public Order Act 1994.

When section 34 applies, such inferences may be drawn from the silence as appear proper to a court or jury in determining whether the accused is guilty of the offence charged. Section 34 can also apply in determining applications to dismiss charges or that there is no case to answer.

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What was said in R v Bowden [1999]

Prosecutors should bear in mind that the courts have indicated that the adverse inference provisions should be interpreted restrictively as section 34 effectively restricts a common law right that was once thought to offer appropriate protection to defendants against the risk of injustice.

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What did the COA warn against, in R v Brizzalari?

The Court of Appeal urged prosecutors not to complicate trials and summings up by invoking the 1994 Act "unless the merits of the individual case required that it should be done."

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What is the purpose of s.34?

The purpose of section 34 is:

(a) to discourage an accused from fabricating a defence late in the day; and

(b) to encourage the accused to make speedy disclosure of any genuine defence or any fact which may go toward establishing a genuine defence. (See R v Roble [1997] Crim LR 449)

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Is the Right to Silence, protected by the ECHR?

The right to silence is protected by the European Convention of Human Rights. Although there is no express entitlement to remain silent, it has been held to be part of the generally recognised international standard of justice and is part of the system established by ECHR - Murray (John) v UK (1996) 22 E.H.R.R. 29. However, this right is not absolute:

"Whether the drawing of adverse inferences from an accused's silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight to be attached to them by national courts in their assessment of the evidence and the degree of compulsion inherent in the situation." (Murray (John) v UK (1996) 22 E.H.R.R. 29.

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What did the Strasbourg court establish in Condron

Sections 34 and 35 are, per se, not a breach of the ECHR. In Condron v UK (2001) 31 E.H.R.R. 1, the Strasbourg Court recognized that the CJPOA aims to strike an appropriate balance between the right to silence and the drawing of adverse inferences. Particular caution is required before an adverse inference can be drawn, but in a situation when an explanation is clearly called for from the defendant, then his silence will be relevant in assessing the persuasiveness of the evidence adduced by the prosecution.

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What is Section 34, tcjpoa

Section 34 allows an inference to be drawn when a suspect is silent when questioned under caution prior to charge (section 34(1)(a)).

An inference can also be drawn when a defendant is silent on charge (section 34(1)(b)).

These subsections are distinct and the fact that no inference can be drawn from silence during questioning does not mean that no adverse inference can be drawn from silence on charge.

In Dervish and Anori [2001] EWCA Crim. 2789, the trial judge had ruled that the defendants' no comment interviews were inadmissible, but had directed that the jury may draw an adverse inference from silence at charge in accordance with section 34(1)(b). 

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What did COA say in Dervish and Anori 2001?

In Dervish and Anori [2001] EWCA Crim. 2789, the trial judge had ruled that the defendants' no comment interviews were inadmissible, but had directed that the jury may draw an adverse inference from silence at charge in accordance with section 34(1)(b).At the Court of Appeal, the defendants had argued that the judge in the trial was wrong to allow the s34b inference.was as the two limbs of section 34 were inextricably linked. The Court of Appeal rejected this argument and approved the judge's approach.

There are two points that arise - (1) if faced with a situation of silence on charge and interview, you should remind the court of the potential drawing of adverse inference under both subsections, and; (2) if there is any doubt as to the admissibility of the interviews, you should be prepared to invite the court to draw an adverse inference under section 34(1)(b) if applicable

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What is the rule in Section 35?

Section 35 allows an inference to be drawn when a defendant is silent at trial. However, this section prevents an inference from being drawn when it appears to the court that "the physical or mental condition of the accused makes it undesirable for him to give evidence."

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What did R v Cowan [1996] establish?

R v Cowan [1996] Q.B. 373 sets out the five steps that a court must take prior to a section 35 adverse inference being drawn:

  1. The judge must tell the jury that the burden of proof remains upon the prosecution throughout and what the required standard is;
  2. The judge must make clear to the jury that the defendant has the right to remain silent;
  3. An inference from failure to give evidence cannot on its own prove guilt;
  4. Therefore the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. The jury may not believe witnesses whose evidence the judge thought raised a prima facie case;
  5. If, having considered the defence case, the jury concludes that the silence can only sensibly be attributed to the defendant's having no answer or none that would stand up to cross-examination, they may draw an adverse inference.
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What was held at the HL in R v Becouarn [2005] UKH

In R v Becouarn [2005] UKHL 55, the House of Lords held that a jury did not have to be directed that there might be reasons for not giving evidence other than the inability to give an explanation or answer the prosecution case

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