NOTES OF CASES

DOIhttp://doi.org/10.1111/j.1468-2230.1944.tb00971.x
Publication Date01 April 1944
70
MODERN
LAW
REVIEW
April,
1944
NOTES
OF
CASES
Silence
as
Admission
of
Guilt
The decision
of
the Court
of
Criniinal Appeal in
R.
v.
Lcckcy,
[I9441
I
K.B.
80,
raises
two points
of
considerable interest. The
first
concerns
the rule that reservation
of
the defence in answer
to
an accusation of
crime is riot evidencc of an admission
of
guilt. This rule
is
founded upon
the fundamental principle that the burden of proof which rests on the
prosecution cannot be discharged by the adduction of evidence of am-
biguous character; it acts
as
a
protection against close questioning by the
police and guarantees the right to legal assistance. When exercised in the
preliminary examination
it
expresses the character of these proceedings,
concerned solely with the question whether
a
pvima facie
case has been
shown by the prosecution, and provides legitimate and sbmetimes essential
assistance to the defence in allowing time needed to collect the evidence
with which to meet the charges, the precise nature of which may not have
been disclosed before the preliminary examination.
It
is thus
not
difficult
to
explain and justify the rule. The privilege
to maintain silence, no less than other privileges, is, however, open to
abuse.
It
enables the raising of surprise defences, especially that of an
alibi, and to prevent this abuse the rub has been qualified in
R.
v.
Littleboy,
[I9341
2
K.R.
408,
so
as to permit observations in the summing up “with
regard to the force of
an
alibi, and to say that
it
is unfortunate that the
defence was not set up
at
an earlier (late
so
as
to afford the opportunity of
its being tested,”
The limits of the inroad
on
the rule made by this qualification are not
easily determined, especially if,
as
Professor Goodhart points out in the
January
1944
issue of the
Law Quartevly Review,
Vol.
60,
pp.
34-5,
the
reasoning
of
R.
v.
Littleboy
is not confined to alibi cases. Professor Good-
hart suggests that the relation of the general rule to the exception estab-
lished in the
Littleboy Case
is
defined by the distinction between evidence
and comment, the silence of the accused, although not available
as
evidence,
being proper subject-matter for judicial comment. This explanation makes
it
difficult to reconcile the decision in the present case, in which the sum-
ming up was held to
be
defective because it contained such comments.
with
Littleboy’s Case.
Moreover, Professor Goodhart’s suggestion meets with the difficulty
that
a
summing up should not contain comment unsupported by
evidence.
If
comment on the silence of the accused implies that such
silence affords some evidence of an admission of guilt,
Littleboy’s Case
must be taken
as
establishing
a
relaxation of the general rule that silence
does not provide evidence of an admission. The degree to which the
general rule has been relaxed can be measured by the purpose of this
qualification of the rule, namely the prevention of abuse of the privilege
to reserve the defence.
If
judicial comments on the silence of the accused
are tested by the presence
of
a
danger of such abuse, the difficulty ex-
perienced by Professor Goodhart in reconciling
R.
v.
Leckev
with
Littleboy’s
Case
disappears.
Leckey was charged with the murder of
a
cinema usherette
at
Folke-
stone.
A
considerable amount of circumstantial evidence was produced
by the prosecution. The summing up
of
Singleton, J., contained three
pointed references to the fact that the accused, when cautioned, refused
to make
a
statement before consulting
a
solicitor. The defence raised
at
NOTES
OF
CASES
71
the trial was not an alibi, nor,
it
seems, such as would have enabled the
police to investigate
it
if
disclosed earlier, and, although this does not
appear clearly from the judgment of the Lord Chief Justice, the accused
or his legal adviser did not disclose
it
at the preliminary examination.
In the circumstances, Singleton,
J.,
could only comment on the accused’s
failure to protest his innocence and on his coolness in the face
of
a charge
of murder.
The reason given by the accused for
his
silence was, at any rate super-
ficially, plausible. His conduct of the defence seems to have been approved
by his advisers. His behaviour,
if
clearly betraying his guilt, should
have been left to speak for itself;
if
equivocal, it
wonld
have called for
psychological interpretation beyond the scope of a summing up. In fact,
the summing up was concerned with the absence of protestations of inno-
cence rather than the failure to disclose the defence. The reservation of
the defence did not constitute an abuse of the privilege to maintain silence
and Singleton,
J
.’s,
comments, therefore, clearly exceeded the limits laid
down in the
Littleboy Case.
Despite these defects in the summing up the conviction appeared fully
justified by the evidence and the appeal seemed to fall within the terms of
sect.
4
(I)
of the Criminal Appeal Act,
1907,
which allows dismissal of an
appeal if the defect established did not produce a substantial miscarriage
of justice. This argument
was
rejected and this provides the other point
cf
interest raised by this case.
‘The Court of Criminal Appeal in the present case felt constrained to
adopt the interpretation of the section given by the House of Lords in
Woolmington
v.
D.P.P.,
[I9351
A.C.
462,
at p.
482.
In that case, Lord
Sankey,
L.C.,
refused to apply the section on the ground that
it
could not
be said that the jury, if properly directed, would nevertheless have con-
victed.
To
assert that every misdirection produces a miscarriage of
justice iinless
it
can be said that the jury,
if
properly directed, wozld have
inevit-dAy coi ie to the same conclusion nullifies, as Professor Goodhart
explains, the effect of the section and defeats the objects of the legislature.
He thinks that the existing mischief of unjust acquittals should be remedied
by granting to the Court of Criminal Appeal
a
discretion, not allowed to
it
at present under the concluding words of sect.
4 (z),
of
ordering
a
new
trial after quashing a conviction.
It
may perhaps be added that reform
might be confined to abrogation of the unfortunate interpretation of
sect.
4
(I)
given in
Woolmington’s
Case,
either by treating the remarks of
Lord Sankey as
obiter dicta
for which-as Professor Goodhart points out
-there is some justification, although Lord Sankey’s observations in
Woolmington’s
Case
appear to be founded on his earlier remarks in
Maxwell
v.
U.P.P.,
[I9351
309.
at pp.
322
ff.,
or through
a
brief amendment of the
Criminal Appeal Act.
J.
UNGER.
Right
of
a
Wife
tc
claim
Money
saved
from
a
House-keeping
Allowance
The case
of
Ulacfzwell
v.
Blackwell,
[I9431
z
All
E.R.
579,
is one more
instance of the truth of the old adage that “in law the husband and
wife are one, but the husband is the one.” In it, the Court of Appeal
unanimously upheld the claim of a husband after separation to moneys
saved from a housekeeping allowance made to the wife while the parties
were living together.

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