Silence of the accused

In this and subsequent editions Denis Clark discusses the provisions that relate to the drawing of adverse inferences when a person being interviewed is silent. The provisions were introduced in Sections 34-38 of the Criminal Justice and Public Order Act 1994.

Silence and denials of the accused

In R v Gilbert (1977) the Court of Appeal held that the trial judge was wrong to invite a jury to draw adverse inferences against an accused who, despite being interviewed by the police and making a statement, failed to mention that he had acted in self-defence until trial.

Lord Dilhorne said:

‘…A right of silence is one thing. No accused can be compelled to speak before, or for that matter, at his trial. But it is another thing to say that if he chooses to exercise his right of silence, that must not be the subject of any comment adverse to the accused… Our task is to apply the law as it now is; and in the light of the authorities to which we have referred, in our opinion the judge in asking the jury to consider whether it was remarkable that, when making his statement, the accused had said nothing about self-defence, fell into error and misdirected them.’

The Criminal Justice and Public Order Act 1994 changed the law along the lines of changes introduced in Northern Ireland by the Criminal Evidence (Northern Ireland) Order 1988. The first sentence in the above quotation remains true, but it is no longer the law that a jury cannot be invited to draw an inference from the failure to mention a fact when being interviewed by the police which he later relies upon at trial. Section 34 of the 1994 Act makes provision for the drawing of proper inferences in such circumstances. Also of relevance is s 36, which provides for the drawing of proper inferences from the failure to account for objects, substances or marks in certain circumstances; and S.37 which permits such inferences to be drawn from the failure of the accused to account for his presence at the scene of the offence. Perhaps the most controversial provision, S.35, which permits proper inferences to be drawn from the failure of the accused to give evidence, is properly the subject of textbooks on the law of evidence and will not be dealt with here.

The failure to mention facts when questioned or charged is the subject of the following:

Section 34 (1) Where in any proceedings against a person for an offence, evidence is given that the accused —

(a)At any time before he was charged with an offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings, or

(b)On being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.

Subsection (2) provides that where the subsection applies –

(a)A magistrates’ court in deciding whether to dismiss a charge in the course of proceedings with a view to transfer for trial to the Crown Court.

(b)A judge in deciding under S.6 of the Criminal Justice Act 1987 whether to dismiss a charge of serious fraud, or under para 5 of Schedule 6 to the Criminal Justice Act 1991 to dismiss a charge of violence or a sexual offence involving a child.

(c)The court in determining whether there is a case to answer, and

(d)The court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.

This provision explains the need for the new caution and the introduction in that caution of the phrase, ‘But it may harm your defence if you do not mention when questioned something which you later rely on in court’. Section 34 is clearly aimed at the ambush defence of the