5.5 Inferences from Silence

5.5 Inferences from Silence

The common law historically protected an absolute privilege against self-incrimination, encapsulated in the right to remain silent without adverse consequences. However, Sections 34 to 37 of the Criminal Justice and Public Order Act 1994 (CJPOA 1994) fundamentally modified this principle in England and Wales. While a suspect or defendant retains the right to remain silent, the 1994 Act empowers the tribunal of fact (jury or magistrates) to draw "such inferences as appear proper" from silence in specified statutory circumstances.

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1. Section 34 CJPOA 1994: Failure to Mention Facts Relied on in Defence

Section 34 is the most frequently invoked silence provision. It allows an adverse inference to be drawn if a suspect fails to mention, when questioned under caution or upon being charged, any fact later relied upon in his defence at trial.

The Statutory Test under Section 34(1)

An inference under section 34 may be drawn if:

"the accused... failed to mention any fact relied on in his defence in those proceedings... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned."

Mandatory Statutory Conditions for Section 34 Inferences:

To permit a section 34 inference, six cumulative conditions must be satisfied:

1. Official Questioning or Charge: The alleged failure must have occurred when the suspect was being questioned under caution by a constable (or authorized investigator) or when being charged.
2. Investigation Purpose: The questioning must have been directed to discovering whether or by whom the offence was committed.
3. Reliance on a Fact: The defence must actually rely on a specific "fact" at trial (e.g. an alibi, consent, self-defence, or a third-party explanation). A bare denial of prosecution allegations does not constitute a "fact relied on" (R v Betts and Hall [2001] 2 Cr App R 16).
4. Failure to Mention: The fact must not have been mentioned during the police interview or upon charge.
5. Reasonableness: The fact must be one which, in the circumstances existing at the time of questioning, the suspect could reasonably have been expected to mention.
6. Access to Legal Advice: where the suspect was at an authorised place of detention, he must have been allowed an opportunity to consult a solicitor before being questioned, charged or informed of a possible prosecution (Section 34(2A)).

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2. The Section 34(2A) Safeguard: Access to Legal Advice

Inserted by section 58 of the Youth Justice and Criminal Evidence Act 1999, Section 34(2A) of CJPOA 1994 provides:

"Where the accused was at an authorised place of detention at the time of the failure, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in subsection (1) above."

Read the qualifying words carefully — this is a favourite examiner trap. The bar operates only where the accused was at an authorised place of detention (in practice, a police station or other authorised detention facility) at the time of the failure. Where that condition is met, denial of the opportunity to take legal advice removes the section 34 inference altogether, whether the denial arose from a formal delay of access under section 58 of PACE 1984 or from simple administrative failure. Silence at a roadside or doorstep encounter, by contrast, is not protected by s.34(2A), because the suspect was not then at an authorised place of detention.

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3. Silence on Legal Advice: R v Hoare & R v Beckles

A common issue arises when a suspect remains silent during police interview on the explicit advice of their solicitor. Does acting on legal advice prevent a jury from drawing an adverse inference under section 34?

The Legal Framework: R v Hoare & R v Beckles

In R v Hoare [2004] EWCA Crim 784 and R v Beckles [2004] EWCA Crim 2766, the Court of Appeal established that solicitor's advice to remain silent does not automatically bar a section 34 inference.

The Jury Evaluation Test:

When a defendant asserts that he remained silent because his solicitor advised him to do so, the judge must direct the jury to evaluate:

1. Genuineness: Did the defendant genuinely rely on the legal advice given?
2. Reasonableness: Was it reasonable for the defendant to rely on that advice in the circumstances?
3. True Reason for Silence: Did the defendant remain silent because he genuinely chose to follow professional advice, or did he adopt the advice as a convenient shield or pretext to conceal a lack of an innocent explanation?

Practice Note: If a defendant seeking to rely on legal advice testifies about the reasons given by the solicitor for advising silence, this may result in a waiver of legal professional privilege, exposing the communications between solicitor and client to cross-examination.

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4. Section 35 CJPOA 1994: Silence at Trial

Section 35 governs the defendant's failure or refusal to give evidence at trial.

Procedure and Requirements under Section 35:

• At the close of the prosecution case, if the court determines there is a case to answer, the judge must satisfy themselves (in the presence of the jury) that the defendant understands:
  1. That the stage has been reached where he may give evidence.
  2. That if he chooses not to give evidence, or refuses without good cause to answer any question, it may be lawful for the jury to draw such inferences as appear proper.
• Exceptions: No inference can be drawn under section 35 if it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence.

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5. Sections 36 & 37 CJPOA 1994: Special Accounting Inferences

Sections 36 and 37 deal with specific situations where a suspect fails or refuses to account for suspicious circumstances upon arrest.

Section 36: Objects, Substances, or Marks

Applies when an arrested suspect has on his person, clothing, or in his possession any object, substance, or mark, or in any place in which he is at the time of arrest. If the officer reasonably believes this is attributable to participation in a crime and requests an account, failure to account permits adverse inferences at trial.

Section 37: Presence at a Particular Place

Applies when an arrested suspect was present at a place at or about the time the offence was committed. If the investigating officer requests an account of his presence, failure or refusal permits adverse inferences.

Mandatory Warning Requirement for Sections 36 & 37:

Before any inference can be drawn under section 36 or 37, the arresting/interviewing officer must give a specific statutory warning explaining:

1. What offence is being investigated.
2. What object, mark, or presence the suspect is asked to account for.
3. That the officer believes this may be linked to the offence.
4. That a court or jury may draw an adverse inference from failure to account.
5. That a record is being made of the interview.

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6. Jury Directions & Safeguards: R v Cowan

In the leading decision R v Cowan [1996] QB 373, the Court of Appeal laid down mandatory guidelines for directing juries on inferences from silence under Sections 34 and 35.

Mandatory Cowan Directives:

1. Burden Remains on Prosecution: The judge must remind the jury that the prosecution retains the legal burden of proving guilt beyond reasonable doubt throughout the trial.
2. Right to Silence Preserved: Silence is not an offence and cannot be treated as an admission of guilt.
3. Inference Cannot be Sole Basis: Under Section 38(3) of CJPOA 1994, a defendant cannot be convicted solely or mainly on an inference drawn from silence.
4. Prima Facie Case Required: The jury must be satisfied that the prosecution evidence establishes a case calling for an answer before any inference from silence can be drawn.
5. No Other Sensible Explanation: The jury may only draw an adverse inference if they conclude that the sole sensible explanation for the defendant's silence was that he had no answer, or none that would hold up under cross-examination.

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7. Lies and the Lucas Direction

Syllabus topic 17 opens not with silence but with lies. The two are analytically close: in each case the prosecution invites the jury to draw an adverse inference from the defendant's conduct rather than from direct evidence of the offence.

The principle

A lie is not, by itself, evidence of guilt. People lie for many reasons that have nothing to do with the offence charged: shame, panic, a wish to protect someone else, a desire to bolster a defence that is in fact true, or to conceal disgraceful behaviour that is not criminal. If the jury were free to reason "he lied, therefore he is guilty", an innocent defendant who lied out of fear would be convicted on the strength of the lie.

The direction — Lucas [1981] QB 720

Where the prosecution relies on a lie as support for its case, the judge must direct the jury that before they may use the lie in that way they must be sure of four things:

1. The lie was deliberate;
2. It relates to a material issue;
3. There is no innocent explanation for it — the jury must reject any possibility that the defendant lied for a reason consistent with innocence; and
4. The lie is shown to be a lie by evidence other than that of the witness whose account the lie is said to support.

When a direction is required — Burge and Pegg [1996] 1 Cr App R 163

A Lucas direction is usually needed in four situations:

• Where the defence relies on an alibi;
• Where the judge invites the jury to look for support for one piece of evidence in other evidence, and a lie is among that other evidence;
• Where the prosecution contends that something said in or out of court was a lie and relies on it as evidence of guilt;
• Where the prosecution has not taken that course, but the judge reasonably envisages a real danger that the jury may do so of its own motion.

When a direction is not required

A Lucas direction is unnecessary — and may positively confuse — where the rejection of the defendant's account is simply "the obverse of" accepting the prosecution case. If the jury's only real question is whether they believe the complainant or the defendant, telling them that they may use the defendant's untruthfulness as support for the prosecution case adds a circular step. The direction belongs to the case where a discrete lie, capable of being proved independently, is deployed as a strand of the prosecution's proof.

Overlap with section 34

Where the judge gives both a s.34 direction and a Lucas direction, care is needed to avoid the jury double-counting the same conduct. The Crown Court Compendium suggests dealing with them separately and explaining precisely which piece of conduct each direction addresses.

Summary of Statutory Silence Provisions