Silence of the accused

In this edition, Denis Clark continues to discuss the provisions that relate to the drawing of adverse inferences when a person interviewed is silent.

The provisions were introduced in Sections 34-38 of the Criminal Justice and Public Order Act 1994.

At the beginning of any interview carried out at a police station, the interviewing officer, after cautioning the suspect, must put to him any significant statement or silence which occurred before his arrival at a police station, and must ask him whether he confirms or denies that earlier statement or silence and whether he wishes to add anything (Code C 11.4).

‘A significant statement or silence’ is defined as: ‘… one which appears capable of being used as evidence against the suspect, in particular a direct admission of guilt, or a failure or refusal to answer a question or to answer it satisfactorily, which might give rise to an inference under [S.34] of the CJPO Act 1994’.

This procedure is designed to prevent any allegation of verballing – whether positive, by ascribing to the suspect a statement he did not make, or negative, by ascribing to him a failure to answer.

There can be few more significant statements than an admission of guilt and the basis for the admissibility of such statements is to be found in S.82(1) of the PACE Act which defines ‘confession’ to include ‘any statement wholly or partly adverse to the person who made it… whether made in words or otherwise’. Thus, if D is asked whether he used the knife shown to him to stab V and he nods in response, the nod can be interpreted as an affirmative reply and is a confession within the section, not a failure to answer.

Statements often come in a mixed form, partly inculpatory and partly exculpatory. While the exculpatory parts are not admissible in evidence, the House of Lords has ruled that out of fairness to the accused the whole statement should be put before the jury, though the judge should point out that the incriminating parts are likely to be true, whereas excuses do not carry the same weight (R v Sharp (1988)). It follows that the entire statement should be put to the suspect.

While out-of-court statements of a self-serving nature designed to set up a defence, such as a statement by the accused charged with murder two days after the offence, that his defence would be that it was an accident (R v Roberts (1942)), are not admissible, such statements made by an accused in response to police questioning cause much difficulty. If, for example, an accused told a police officer at the scene of a killing that it was an accident, that statement – though hearsay – may be admissible as an exception to that rule as part of the res gestae.

Alternatively it is evidence that should be admitted at his trial, not as evidence of the facts stated, but as part of the general picture. If D gives evidence to that effect then his statement to the police is evidence of consistency.

Exculpatory statements, if they can be proved to be a lie, may also be evidence which supports the prosecution case. Thus if D, on being asked where he was on the night of a burglary says, “I was at my girlfriend`s all night”, that is an alibi and not a significant statement as defined by Code C. But if this proves to be a lie, the fact that he said it and that it was a lie can – subject to R v Lucas (1981) (see point (5) above) – be given in evidence against the accused. While therefore such a statement need not be put at the beginning of an interview, as required by Code C 11.4, it should be put to him at some stage in the interview.

Identifying significant silences can be even more difficult. One must bear in mind that statements include gestures of assent or dissent. Thus a vigorous shake of the head in response to the accusation, “Did you attack V?” is a statement of denial (see below point (9)), not a failure to answer, and it is only a failure to answer satisfactorily, which can lead to inferences being drawn under S.34. On the