Silence: Lord Taylor's Legacy
| Author | Rosemary Pattenden |
| Published date | 01 July 1998 |
| Date | 01 July 1998 |
| DOI | http://doi.org/10.1177/136571279800200301 |
| Subject Matter | Article |
Silence:
Lord
Taylor's
legacy
By
Rosemary
Pattenden
1
University
of
East
Anglia
It
is
three
years since
the
right
to silence provisions
of
the
Criminal Justice
and
Public OrderAct 1994
(CRIMPO)
came
into
force
in
England
and
Wales," In
these
three
years
the
Court
of
Appeal, Criminal Division," has
had
numerous
opportunities
to
consider
the
interpretation
and
application
of:
1. Section 35,
which
permits
inferences from
the
failure
of
an
accused
who
has
attained
14 years
of
age to give evidence;
2. Sections 36, 37
and
34,
which
permit
inferences
in
three
instances
of
failure to provide
information
to police in response to questioning:
(a)
when
possession
of
an
article
or
the
presence
of
some
mark
or
substance makes
the
accused asuspect;
(b)
where
the
accused's presence
at
some place makes
him
a
suspect;
(c)
in
the
event
that
his defence
at
trial
relies on a fact
which
he
could reasonably have
been
expected to have
mentioned
to
the
police,
but
did not.
The law
constructed
by
the
Court
of
Appeal
around
the
CRIMPO
silence
provision is complex,
and
not
always clearly
thought
through.
In
this
article a
number
of
inter-related aims
are
pursued:
to
explain
and,
at
appropriate
points
in
the
analysis, to
comment
on
the
way
the
four sections have
been
interpreted
by
the
Court; to
pinpoint
issues
awaiting
resolution
by
the
Court;
to
examine
the
strategies
open
to
the
defence to avoid
an
adverse inference
from
the
accused's silence before, or at, trial; to
consider
procedural
points
that
have arisen;
and,
finally, to
examine
the
compatability
of
the
silence
provisions, as
interpreted,
with
the
European Convention
on
Human
Rights.
The
article
concentrates
exclusively on
jury
trials.
~m
very
grateful
for
suggestions
from
Colin
Tapper
and
Roger Leng.
I
::?
April 1995.
3 No case
has
gone
to
the
Queen's
Bench Divisional
Court.
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141
SILENCE:
LORD
TAYLOR'S
LEGACY
The inferences permitted from silence
In-court silence
Section 35(3)
of
CRIMPO
permits
the
accused's failure to testify, or
without
good cause to answer any question," to be
taken
into
account
by
the
jury,
once
the
prosecution
has
made
out
aprima
facie
case,
'in
determining
whether
the
accused is
guilty
of
the
offence charged'. In R v Cowan s. 35 was said
'to
add
a
further
evidential factor
in
support
of
the
prosecution
case'."
What
does
this
mean?
According to
the
common
law silence can,
depending
on
the
circumstances, be an 'evidential factor' in two
different
ways:"
1. Silence
can
strengthen
or weaken otherevidence
and
the
inferences
from otherevidence." Used
in
this
way silence is
not,
in
itself, evidence
of
guilt.
2Silence may imply aconsciousness
of
guilt
or, alternatively,
acceptance
of
another's
accusations." In
both
of
these
situations
silence
has probative value;
it
constitutes
evidence
of
guilt.
In civil proceedings,
where
there
is no
right
to silence, a
court
is
entitled
to
draw adverse inferences from a
defendant's
failure to give evidence,
including
the
inference
that
he has
committed
acrime." In
criminal
proceedings,
where
the
right
to silence exists,
the
common
law does
not
treat
the
accused's silence in
court
as any evidence
of
guilt;"
only
the
first use
of
silence is
permitted.
The
risk
of
guilt
being
inferred
from silence would
put
pressure
on
the
accused to testify
which
would
tend
to
undermine
the
right
to silence.
The fact
that
[the defendant] has
not
given evidence proves
nothing
one
way or
the
other.
It
does
nothing
to establish his
~r
example, Rv
Ackinclose
[1996] Crim LR747.
I
~
~
v
Cowan
[1996] QB 373,379 per Lord Taylor
CJ.
6J.Heydon
and
M. Ockelton,
Evidence:
Cases
and Materials,
4th
edn
(Butterworths: London, 1996)
143. See also. P.Mirfield,
Silence,
Confessions
and Improperly Obtained
Evidence
(Oxford University
Press: Oxford, 1997) 239.
7
It
will
weaken
inferences
from
defence evidence
and
strengthen
inferences
from
prosecution
evidence.
8 See Rv
Mitchell
(1892) 17 Cox CC 503, 508, R v Chandler [1976]1 WLR585.
9 NoteUnited Trading
Corp.
SAv AlliedArab Bank Ltd [1985] 2 Lloyd's Rep 554. In Halfordv
Brookes
The
Times.3October 1991,
LEXIS,
QBD30
September
1991. a civil
action
for
battery
by
the
mother
of
a
girl
who
was
brutally
murdered
against
a
man
suspected
of
the
crime
whom
the
Crown
Prosecution
Service
had
refused to
prosecute
and
his stepson,
who
had
been
acquitted
of
the
crime,
Rougier Jsaid: 'I
take
the
view
that
I
should
have
regard
to
the
first
Defendant's
failure
to give evidence,
not
by any
means
as
being
conclusive
but
as
having
a
degree
of
probative
value'. See Also
Francisco
v
Diedrick
QBD,
unreported,
24 March 1998.
10 R v Sparrow [1973]1 WLR
488,495;
R v Mutch [1973J 1 All ER 178,180. Because silence in
court
must
be
treated
as
neutral
in
criminal
proceedings, it
cannot
be
used
to
corroborate
evidence:
R v
Jackson
(1953) 37 Cr App R 43, 48.
142
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