Criminal Evidence

1. INTRODUCTION:

This study researches recent case law pertaining the drawing of adverse inferences, pursuant to s.34 of the Criminal Justice and Public Order Act 1994 from an accused whose failure to state during pre-trial interview truths that he subsequently relies on in court. The decided cases divulge that even a defendant who accepts in true sense and follows legal advice to remain silent cannot be sure that adverse inferences are precluded. It is disputed that more careful thought needs to be given to what constitutes a genuine reliance on legal advice. Accused who do rely in true sense on bona fide legal advice should not have adverse inferences drawn against them.

2. ANALYSIS OF SILENCE PRIOR TO TRIAL:

As per section 34 of the Criminal Justice and Public Order Act, 1994 which allows inferences to be drawn if an accused maintains silence during interview on the advise of his lawyer, a fact which later relied on at trial, in the situations existing at the time, the accused could reasonably have been expected to mention .Thus, section 34 of the Criminal Justice and Public Order Act, 1994 is one of the most contentious ideology of the law of criminal evidence in England and Wales.

In R v Howell, it has been established that an adverse inference may be drawn where the suspect acted on legal advice in failing to point out a fact in interview during the time of his arrest. In this case, Howell appealed against his sentence for wounding with intent. On the advice of his solicitor, he kept silence during the interrogation by police as he had not provided a written statement.

Howell, during trial proceedings, relied on the defence of self –defence. No comments during the police interview will be regarded as main ground of appeal to the Court of Appeal. It was argued that the judge had erred in directing the jury as regards to silence by the accused hence he was really not an innocent victim but perpetrator of a heinous crime. Hence, the accused was not interested to avail the benefits of defence.

The Court of Appeal in Howell held that genuine reliance on legal advice to remain silent was not of itself sufficient to prevent the drawing of adverse inferences. Absence of a written statement from the complainant to be good reason for silence and it does not become a valid reason merely because a solicitor has so advised. The reason for no written complaint from complainant may be due to that the complainant may not pursue his complaint good reason. Likewise, the solicitor advice to his client to remain silent may be on the premise that the suspect may be charged in any event whatever he disposes.

Further, an accused silence may be due to other factors like ill-health, especially mental -disability; intoxication; confusion; shock, etc. Further, accused inability may be due incapacity to recollect events without reference to documents which are not readily available to hand or he may have to communicate with others who may help him to recollect .Thus, silence should be supported by sound reasons, cogent and assist to weigh in the balance against the clear public interest in an account being offered by the suspect to the police.

In Howell, the court regarded that its reasoning was not inconsistent with the decision of the ECHR in Beckles v United Kingdom. In Howell, the court has cited relevant portions of decision made in the Beckles such as the right to silence by the accused cannot and should not prevent that the accused’s silence, in circumstances which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.

Thus, for the Court, whether arriving at conclusion of unfavourable inference from an accused’s silence violates Article 6 is a matter to be concluded in the light of all the circumstances of the case, having regard to the circumstances where deductions may be drawn, the importance attached to them by the national courts in their evaluation of the evidence and the scale of compulsion inherent in the situation. Further, significance will be given to terms of the trial judge’s direction to the jury on the issue of adverse inferences.

3. INCONSISTENCY BETWEEN HOWELL AND BETTS AND HALL:

In R v Betts and Hall, the Court of Appeal [2003] has recently noted that the importance of giving due weight to an accused’s reliance on legal advice to explain his failure to respond to police questioning. Kay LJ in the R v Betts and Hall also interpreted Condron so as to prevent the drawing of adverse inference where an accused proves that his silence is genuinely attributable to his lawyer’s advice, as he observed “In the light of Condron, it is not the quality of the decision thereby maintaining silence but the genuineness of the decision that matters.

In a nutshell, there is a clear approval of the post-Condron evolution of domestic case law as summarised in the decision in Betts and Hall. Thus, the attempt in Howell to weaken the reasoning in Betts and Hall flies in the face of the decision of the ECHR in Beckles.

4. CONSISTENCE:

In Hoare and Pierce, Auld LJ held that there was no inconsistency between Betts and Howell. In Betts , it was observed that where a solicitor has in good faith advised silence and the defendant has relied on it , a jury may still draw an adverse inference if it is sure that the true cause for his silence is that he had no or no reasonable explanation consistent with innocence to forward. Thus, the principle of Kay LJ has followed by Laws LJ in Howell.

In Beckles case, the court was of the opinion that the trial judge failed to give proper weight in his direction to the applicant’s explanation for his silence at the police interrogation and left the jury at liberty to draw an adverse inference from the applicant’s silence disregarding the fact that it may have been satisfied as to the plausibility of the explanation given by the applicant. By his mere silence, the applicant had invited the jury to reflect on whether the applicant’s motive for silence was ‘a good one’ without also emphasizing that it must be consistent only with guilt.

In Howell, the court regarded that its reasoning was not inconsistent with the decision of the ECHR in Beckles v United Kingdom. In Howell, the court has cited relevant portions of decision made in the Beckles such as the right to silence by the accused cannot and should not prevent that the accused’s silence, in circumstances which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.

5. INCONSISTENCE:

Howell decision deserves criticism on the following grounds. It is an “objective” approach, as a matter of precedent, which is inconsistent with the “subjective” approach in Betts. Further, it offers a putative ‘subjective’ approach of Betts ought to be desired as a matter of principle.

Choo and Jennings in their silence on legal advice revisited has stated that “Howell is a mischievous decision which has created inconsistent case law on the important issue of the evidential consequences of remaining silent on legal advice.”

The direction on legal advice is based on R v Hoare and Pierce [2004] in which Auld LJ considered and reconciled earlier authorities, in particular R v Betts and Hall [2001] R v Howell [2003] and R v Knight [2004] which some commentators had thought to be inconsistent.

6. SITUATION PRIOR TO HOWELL:

A major milestone in the development of s.34 jurisprudence is the decision of the European Court of Human Rights [ECHR] in Condron v United Kingdom. The accused was instructed by his solicitor to keep silence during the police interrogation. ECHR was of the view that the Jury should have been directed that it could only draw an unfavourable supposition if satisfied that the applicant’s silence at the police interview could only regarded as no answer or none that would stand up to cross-examination. The domestic court should have given due weight for the very fact of the advice extended by his lawyer to maintain silence. In view of the above, ECHR has on the foundation of the inadequacy of the judge’s direction to the jury, concluded that the applicant had been refused the privilege to a fair trial under Article 6 of the ECHR.

In a subsequent decision after Condron, the Court of Appeal in R v Betts and Hall held that to satisfy Article 6, s.34 should be deduced as permitting adverse inference only where the jury was convinced that the suspect had no innocent explanation to offer. Thus, the approach promoted in Betts and Hall was that adverse inference could not be drawn a no-comment interview if the jury had acknowledged the defendant’s claim that the ‘silence’ was attributable to legal advice to offer a non-comment interview ,rather than to the defendant’s having no adequate answer.

The defendant should have proved his genuineness of the claim that silence was due to legal advice. It is to be observed that the Betts and Hall has since been referred to in the judgment of the ECHR in Beckles v United Kingdom where ECHR once again found a violation of Article 6 on the basis that the judge had erred to forward a suitable direction to the jury on the drawing of adverse inference under s.34.

7. SCENARIO AFTER HOWELL:

In R v Buckles, there was an analysis of s.34 of the Criminal Justice and Public Order Act 1994 which authorises inference to be drawn from an accused’s failure to refer in a police interrogations a fact which he later relied on at trial which in the scenario existing at the time, the accused could reasonably have been expected to reveal.

In Buckles case, appellant appeal was dismissed by the Court of Appeal but it was held in the subsequent appeal in the ECHR that there had been a violation of his to a fair trial under Article 6 [1] of the ECHR.

It is to be noted that it was held in R v Knight [1977] that where the facts do not permit room for a genuine inference that the accused remained silent hence he had no or no credible account of the incidents to offer , s.34 inference should not be made available to jury.

Thus, the Court described that the intention of the s.34 is to reprimand accused who fabricate untruthful accounts after initial questioning and not to encourage the answering of questions per se. In this case, the court was of the opinion that trial court had erred in leaving to the jury though the accused had given a written statement before his silence during the police interrogation. Following the procedure laid down in the R v Knight, the Criminal cases Review Commission under s.9 of the Criminal Appeal Act 1995 held that s.34 inferences should not have been made available to the jury since the accused had submitted a statement detailing his account of events on the eve of his arrest and maintained the same at trial.

A new specimen direction has been now issued by the Judicial Studies Board which assimilates the law stated in Howell, Hoare and Pierce and Beckles in Criminal Case Review Commission as to when silence in reliance on legal advice is reasonable under s.34 of the Criminal Justice and Public Order Act, 1994. Thus, the position of the English law on remaining silence by an accused is depending upon the following factors:

The accused should have remained in silence on the basis of the legal advice given to him on the belief that he was entitled to rely on it.
Silence should not be used by an accused to conceal his lack of an adequate explanation as it was held in Beckles in Criminal Case Review Commission as the court explained this stage of the test in terms of whether the appellant’s reliance on the legal advice was ‘reasonable’ or ‘the true explanation for his silence’.

8. CONCLUSIONS:

It is humbly submitted that the decision made in Howell is clearly per incuriam and it is an impish decision as it has resulted in an unreliable case law on the significant issue of the evidential consequence of remaining silent on legal advice. In Condron v United Kingdom, “fitting weight “was accorded to the fact that silence was advised. The striking factor is the manner in which this requirement of ‘fitting weight “has been later analysed.

It is to be remembered that Beckles case supports the decision made in “Betts and Hall “ which regarded that legitimate reliance on legal advice to remain silent , despite of the quality of that advice , must be enough of itself to thwart the drawing of adverse inferences.

Such adverse inference not only demoralizes the fundamental magnitude accorded to the right of legal advice by the statutory provisions but also dissuades the accused capability to make his assessment of the quality of that advice.

One of the main issue the Court have ignored is that the accused has acted on the instruction given to him by his solicitor and in such case, if the court find it that he wantonly maintains silence to conceal some truth, it is submitted that it is solicitors and not defendants who should be penalised for conduct of this sort.

Even if one considers the approach of the Court of Appeal in Howell were according to the provisions of the law but the decision on the facts is contentious. It is not justifiable to anticipate an accused in Howell’s position to answer to police questioning on the basis of the complainant’s contentions as relayed by police, rather than a formal witness statement which would be admissible in court. Under the foregoing circumstances, the accused decision to remain silent during police interrogation on the basis of the legal advice seems to have logical footing.

Abbreviation:

ECHR—- European Court of Human Rights

BIBILIOGRAPHY:

Andrew L.-T, Choo and Anthony F.Jennings (2003) ‘Silence on legal advice revisited: R v Howell ‘The International Journal of Evidence & Proof, Vol.7, 185-190.

Andrew L.-T, Choo, (2004) ‘Prepared statements, legal advice and the right to silence: R v Knight ‘The International Journal of Evidence & Proof, Vol.8, 62-67.

Billal Malik, (2005),’ Silence on legal advice: Clarity but not Justice: R v Beckles ‘The International Journal of Evidence & Proof, Vol.9, 211-216.

Mirfield, Peter. (1997) Silence, Confessions and Improperly obtained Evidence, Oxford: Clarendon Press.

Simon Cooper (2006) ‘Legal Advice and Pre-Trial Silence –Unreasonable Developments ‘The International Journal of Evidence & Proof, Vol.10, 60-69