The Right to Silence and Article 6 ECHR

“The right to silence lies at the heart of the Notion of a fair procedure guaranteed by Article 6 ECHR” This articles discuss the right to silence with reference to the provisions in ss. 34-38 of the Criminal Justice and Public Order Act 1994.

Introduction

The aim of this article is to examine and consider Article 6 of the European Convention on Human Rights in light of the provisions of the Criminal Justice and Public Order Act 1994 that are the subject-matter of this paper. In order to achieve its aim, this article will be divided into three distinct parts: (1) Article 6 of the European Convention on Human Rights; (2) the Criminal Justice and Public Order Act 1994; and (3) Commentary. A final conclusion will be made with the aim of summarising the arguments and providing the reader with a clear understanding of what the writer’s views are on the matter.

Part One: The European Convention on Human Rights

Article 6 of the European Convention on Human Rights (hereinafter referred to as “the Convention”) states that everyone is entitled to a fair hearing. Although the Article does not expressly mention the right to silence, the European Court of Human Rights (hereinafter referred to as “the Court”) in Murray v United Kingdom (Right to Silence) declared at paragraph [45] of its judgment that:

“[T]here can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.”

This right, though not as expressly and clearly worded, can be traced back to the Court’s judgment in Funke v France delivered on 25 February 1993. However, the leading Strasbourg case on the right to silence is considered to be Murray v United Kingdom. The reasoning provided by the Court in Murray v United Kingdom for the insistence on the provision of such a right to those accused was that by providing protection against improper compulsion by the authorities, such immunities contribute to avoiding miscarriages of justice as well as securing the aim of Article 6. The right has now been universally accepted by judges and scholars, one scholar describing the right to silence as “an essential ingredient of Article 6”.

Having identified the relevant case-law on the right to silence under the Convention, this paper will now proceed to examine the domestic provisions which relate to the right explored above.

Part Two: The Criminal Justice and Public Order Act 1994

Sections 34-38 of the Criminal Justice and Public Order Act 1994 (hereinafter referred to as “the 1994 Act”) deal with inferences to be drawn under particular circumstances against an accused. This paper will explore their content in order to enable the making of a proper comparison between the Convention right and the domestic provisions and evaluate the extent to which the domestic provisions hinder the right afforded by the Convention, if any.

Section 34(1) and (2) of the 1994 Act stipulate that where an accused fails to mention any fact relied upon in his defence when questioned under caution or when charged with the offence, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention, inferences which appear proper may be drawn from the failure to do so. The word fact is to be “given a broad and not a narrow or pedantic meaning. The word covers any alleged fact which is in issue and is put forward as part of the defence case.” As to the scope of the term ‘fact’, Lord Bingham of Cornhill, in delivering the unanimous opinion of their Lordship, stated that “a defendant relies on a fact or matter in his defence not only when he gives or adduces evidence of it but also when counsel, acting on his instructions, puts a specific and positive case to prosecution witnesses, as opposed to asking questions intended to probe or test the prosecution case. This is so whether or not the prosecution witness accepts the suggestion put.”

Section 2(A) makes the opportunity to consult a solicitor prior to being questioned, where the accused is at an authorised place of detention at the time of the failure, a pre-condition to the drawing of such an inference. Where such an opportunity is not afforded to the accused, an inference cannot be drawn and the jury (where applicable) should be so directed. This provision was added by section 58 of the Youth Justice Criminal Evidence Act 1999 to comply with the judgment of the Court in Murray v United Kingdom where it was held that even a lawful exercise of a power to delay access to legal advice could, where the accused was at risk of adverse inferences under the statutory scheme, be sufficient to deprive the accused of a fair procedure under Article 6.

It should be noted that sections 35-37 also provides for adverse inferences to be drawn against an accused in cases where, to briefly state, the accused remains silent at trial, the accused fails or refuses to account for objects, substances or marks and the accused fails or refuses to account for presence at a particular place.

Part Three: Commentary

As it is a pre-requisite in any discussion for opposing arguments to be explored in order to ensure that the conclusion reached is a valid and acceptable one, this paper will now explore whether or not, in light of the above-stated provisions of the 1994 Act, the right to silence does actually lie at the heart of the notion of fair procedure guaranteed by the Convention. The arguments against the proposition will be considered first, followed by the arguments supporting it.

The first and the simplest argument that can be advanced is that the right to silence is such a vital right necessary for the avoidance of miscarriages of justice that it ought to be an absolute right. In cases where the right is relied upon, the prosecution should not be entitled to rely upon the accused’s reliance on his right to silence and request for an adverse inference to be drawn against the accused. If the prosecution has determined to bring the matter before the court, it should have sufficient evidence to do so. The State should not assist in the prosecution of individuals in such a way that leads or may lead to wrongful convictions. One feels obliged to note here the comment contained in Blackstone’s Criminal Practice 2011 where the authors have expressed the view that despite the Court in Murray v United Kingdom ruling that the right to silence is not an absolute right, the extent to which the above-mentioned provisions of the 1994 Act operate consistently with the right to a fair trial is still a matter of some debate.

However, one should also remember that the Court in Condron v United Kingdom held that “it is obvious that the right cannot and should not prevent that the accused's silence, in situations which clearly call for an explanation from him”. Thus, the existence of the adverse inference provisions is not in itself incompatible with the Convention rights.

The second reason, as advocated by Susan Easton , is that where the judge determines, after having consulted the counsel for prosecution and defence, that a direction to the jury should be given under the 1994 Act, the matter will be left to the jury for them to consider the matter in light of all the other evidence and determine the accused’s guilt. At that point the accused is at the mercy of the jury and their common sense approach to issues. The danger that surfaces here, according to Susan Easton, is that the common sense approach is problematic in such cases. She argues that the common sense assumption in such cases is that an innocent person would speak when charged with an offence he/she did not commit. It would indeed be a powerful argument if one was to state that if common sense so dictates then there is no better way in determining the issue at hand. However, jurors do not possess the experience and insight into matters that would enable them to properly assess the matter at hand. As Susan Easton rightly points out, there may in fact be other reasons for silence of which the jury is unaware; the desire to protect someone else being the most obvious reason.

The arguments that may be contended by those who support the provisions relating to adverse inferences will now be scrutinised. There are two main arguments that may be contended by those who support the existence of the provisions of the 1994 Act relating to adverse inferences. The first of those is the argument that appears to be the strongest and the most persuasive one. It is argued that the adverse inference provisions of the 1994 Act ensure that criminals are brought to justice, but, at the same time contain safety measures aimed to avoid the occurrence of miscarriages of justice. In simple terms, it is argued that the provisions contain adequate protections to prevent the provisions being abused and used to convict the innocent.

In order for the prosecution to be entitled to rely upon the adverse inference provisions where section 34 is applicable, the judge must be satisfied that the fact which the accused failed to mention was a fact which he/she could reasonably have been expected to mention when questioned, charged or informed. Further, the accused must have been provided with the opportunity to consult a solicitor before being questioned, charged or informed, provided that the accused was at an authorised place of detention at the time of the failure.

Where section 35 is being considered for the purposes of the drawing of adverse inferences as against the accused, the judge must ensure, before directing the jury that they are entitled to use the accused silence at trial, that the accused’s failure to do so is without a good cause. Where the accused provides a satisfactory explanation as to his/her silence at trial, the judge should direct the jury that they should disregard his failure to do so. However, one should note here that the circumstances which qualify as “good cause” under section 35(2) have been restricted to those listed in sub-section (5): in cases where he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or in cases where the court in the exercise of its general discretion excuses him from answering it. Perhaps more importantly, the accused is not compelled in any way to give evidence at trial and his failure to do so will not constitute contempt of court.

As to the accused’s failure or refusal to account for objects, substances or marks, it should be noted that section 36 places a requirement for the constable investigating the case to possess a reasonable belief that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable and that the accused is informed of this belief and is requested to account for it. Further, the constable must inform the accused of the consequences of his failure or refusal to account for the presence of the object, substance or mark in ordinary language. The right to be afforded the opportunity to consult a solicitor before the request is made, if made at an authorised place of detention, is equally applicable to this section.

The last of the provisions of the 1994 Act permitting the jury to draw inferences that appear proper in certain cases is section 37. This section requires that, as a precondition to entitling the judge to direct the jury that they may draw inferences that appear proper, for the accused to be informed of the constable’s reasonable belief and also of the consequences of failure or refusal to comply, which must be explained in ordinary language. The right to legal advice is also equally applicable. One should not forget the general protection provided within the framework of the adverse inference provisions that an accused should not have a case to answer, be convicted or have his/her case transferred to the Crown Court solely on an inference drawn from such a failure or refusal mentioned in sections 34-37. Furthermore, the House of Lords held in Murray (Kevin Sean) v DPP that inferences that appear proper from the circumstances of the case within the ambit of the provisions can only be made once a prima facie case against the accused has been shown to exist.

Although the above examination may have been too detailed, the writer is of the view that it was a necessity for the proper understanding of the protections provided and to enable one to conclude upon their adequacy. It should be no doubt conceded that sections 34-37 do indeed provide for an adequate protection system to prevent miscarriages of justice. It goes without saying that the provisions are not completely satisfactory and that amendments will naturally be needed. However, the discussion of such matters is not within the purpose of this paper and therefore will not be explored here.

The second reason that may be advanced for the proposition that the right to silence lies at the heart of the notion of a fair procedure guaranteed by Article 6 is the general discretion afforded to the courts to exclude evidence under section 38(6). This is, in a sense, a ‘catch all’ protection whereby the courts are given the power to exclude evidence having regard to the facts of the case and the extent to which the prosecution is justified in relying upon the accused’s failure. This flexibility, it is submitted, allows for the rigidity of the statute to be modified where justice requires.

Conclusion

In summary, it appears that the statement of the Court in Murray v United Kingdom, which this article examined, is, on the whole, a correct and accurate evaluation of the right afforded under Article 6 of the convention. The right has been insistently observed and enforced by the Court despite not being specifically mentioned in the text of the Convention and signatory states have been forced, though not literally but out of necessity, to make the relevant amendments to their legislation to uphold the right. The existence of the adverse inference provisions in UK domestic law does not hinder the right in any way. All it does is to balance the need to preserve and enforce the right with the aim of the criminal justice system to bring criminals to justice. This is permissible not only because the Court allows it but also because the Convention itself explicitly stipulates that the right is not an absolute right and, thus, should naturally be considered in light of the facts of the case and the surrounding circumstances. The general discretion afforded to domestic judges under section 38 further supports this view.

Bibliography

Books

Professor David Ormerod and The Right Honourable Lord Justice Hooper, ‘Blackstone’s Criminal Practice 2011’, (Oxford University Press: London, 2010) at p. 474.

Journals

Berger, M., ‘Europeanizing Self-Incrimination: The Right to Remain Silent in the European Court of Human Rights’ (2006) 12 Columbia Journal of European Law 339.

Berger, M., ‘Self-incrimination and the European Court of human Rights: procedural issues in the enforcement of the right to silence’ (2007) European Human Rights Law Review 514.

‘Case Comment: Criminal Procedure: Fair trial – right to silence’ (2000) European Human Rights Law Review 70.

‘Case Comment: Criminal law: the right to silence – Northern Ireland’ (1997) European Human Rights Law Review 167.

‘Case Comment: The Right to Silence – drawing adverse inferences – directions to jury’ European Human Rights Law Review 522.

‘Case Comment: Shukla v United Kingdom (Application no. 2526/07): right to silence – privilege against self-incrimination – accused answering police questions – omission of relevant factors’ (2009) European Human Rights Law Review 709.

Easton, S., ‘Case comment: Adverse inferences and the right to silence’ (2000) International Journal of Evidence and Proof 63.

Easton, S., ‘Legal advice, common sense and the right to silence’ (1998) International Journal of Evidence and Proof 109.

Jennings, A.F., ‘Recent developments in the law relating to the right to silence’ (1999) Archbold news 5.

Munday, R., ‘Inferences from Silence and European Human Rights Law’ [1996] Criminal Law Review 370.