Law of Evidence: The Right to Silence - Case Study Example

?The Right to Silence In R v Gilbert in 1977 the Court of Appeal in emphasizing the importance of the right to remain silent, ruled that a direction to a jury indicating that an inference of guilt can be drawn from the defendant’s exercise of that right was erroneous. However, Sections 34-38 of the Criminal Justice and Public Order Act 1994 reversed the Court of Appeal’s ruling. Accordingly, where a defendant fails to state facts while being interrogated by police that are subsequently raised during the trial or fails to give evidence at the trial, an adverse inference can be drawn. However, as observed in R v Beckles, such inferences cannot be used to establish guilt. The House of Lords in R v Webber of 2004 that pursuant to Section 34 facts may include any fact that is an issue at the trial and tendered by the defendant in his or her defence. Moreover, facts will include any explanation or fact that the defendant would have logically raised at an earlier stage of the criminal proceedings. According to the ruling in R v Ali, the only recourse a defendant may have is to either deny culpability at the police station or to prepare a statement setting out his or her defence so as to preserve the right to raise the defence at trial. The right to a fair trial guaranteed by Article 6 of the ECHR demands however, that prosecutors bear the burden of proof. It was ruled in R v Condron that directions to the jury must be given with caution emphasizing the right to silence. The Judicial Studies Board established 6 points intended to ensure that adverse inferences contained in section 34 do not contradict Article 6. The 6 points correspond with the 6 requirements for adverse inferences as laid doing in R v Argent and are: There must be proceedings. Failure to mention a fact must predate the charge or when being charged. The omission must have occurred while being questioned under caution. The questions must have related to determining who committed the offence. The omitted fact must be one subsequently used in defence at the trial. The omitted fact must be one that accused was logically expected to mention. The courts have tried to set limits to what amounts as a new fact and to preserve the defendant’s right to remain silent. For example in R v McGarry, the defendant was charged with causing grievous bodily harm. In a written statement taken by the police, the defendant claimed that he acted in self-defence and did not answer police questions. At his trial, the defendant testified to facts substantiating and building on his claim of self-defence. The trial judge said that he was not inviting the jury to draw an adverse inference since D had not raised a new fact but did state that it was up to the jury to determine whether or not they wished to draw an adverse inference. The defendant was convicted and appealed. The appeal was allowed because the trial judge had a duty to direct the jury that they were not at liberty to hold the defendant’s failure to answer police questions since he did not rely on a new fact. R v B (MT) partially deals with circumstances in which a defendant may not be aware that a new fact may provide him or her with a defence. In this case the defendant was accused of sexual raping his stepdaughter, a minor and another girl under the age of 16. When questioned by the police, the defendant could not identify a motive for the girls to lie. However, at trial, his stepdaughter testified that she resented the defendant and did not want him to live with her mother. The defendant used this information in his defence. The trial judge directed the jury that they could draw an adverse inference from this if they felt that it was reasonable for the defendant to raise the issue of motive while being questioned by police. The defendant was convicted and upon appeal, the Court of Appeal allowed the appeal on the grounds that the fact relied on was not a fact that the defendant could have known when questioned by the police. Likewise in Murray v UK before the European Court of Human Rights it was held that an adverse inference may not be drawn where the defendant was not provided with or offered an opportunity to obtain legal advice during the interrogation. Moreover, in Nickolson it was held that adverse inferences cannot be drawn in cases where the facts relied on in defence were not known to the accused at the relevant time. In Betts and Hall it was held that where a defendant simply admits to facts adduced by the prosecution or makes a suggestion or presents a theory those gestures will not be regarded as facts that fall under the authority of Section 34. Section 35 permits the court to draw an adverse inference from an accused silence at the trial. It was held in R v Friend, that a defendant who was 14 years old with cognitive difficulties was not exempt from Section 35. However, Section 35(1)(b) arose if the court was satisfied that the defendant mental or physical condition implied that it was not desirable that he give evidence. In such a case, the court should direct the jury against drawing adverse inference. Similarly in R v Tabbakh it was held that the judge could direct a jury that it can draw an adverse inference from the defendant’s exercise of the right to remain silent at trial despite the exception contained in Section 35(1)(b). In this case the defendant had a mental health problem. Thus the court has a discretion when applying to Section 35(1)(b) and can decide for itself whether or not the defendant’s mental or physical health is such that it is undesirable for him to testify. Section 35 therefore puts the defendant under significant pressure to surrender the right to remain silent. The European Court of Human Rights in Funke v France made it clear that the right to silence cannot be forcibly waived to compel self-incrimination. In the Saunders v UK, the European Court of Human Rights likewise ruled that a defendant could not be forced to waive the right to silence in order to help the authorities in circumstances where the waiver would compel the defendant to incriminate himself. This was a breach of Article 6. It would appear however, that the defendant must waive the right to silence in his/her defence at trial. Read More