Reasons for Silence

12 October 2002

In light of various cases, the Judicial Studies Board Specimen Directions in relation to an accused’s silence in interview have been expanded and, according to the European Court, improved. Two features have been at the heart of this judicial (both domestic and European) development.

First, what is the strength of the case against the accused before there is any reasonable requirement for him to provide an answer? In Murray v UK (1996) 23 EHRR, the European Court held that the drawing of an adverse inference had been in accordance with Article 6 of the European Convention on Human Rights because, inter alia, the case against the accused was "formidable" and common sense demanded an explanation. It was also held at the other extreme that a case based solely, or even mainly, upon such silence was incompatible Art. 6. No dividing line was drawn between these two extremes. Section 38(2) of the Criminal Justice and Public Order Act provides that no one shall be convicted solely upon an inference; there is no mention of "mainly". In the Court of Appeal, it has been held that the point at which adverse inferences from silence become permissible is when there is a prima case: R v Cowan [1996] 1 Cr App R 1. This was the expression used in the old Specimen Directions. In R v Birchall [1999] Crim L R 311, however, Lord Bingham CJ said that an adverse inference could not be drawn until the evidence "was sufficiently compelling to call for an answer" from the accused. This seems much nearer to Murray, and, indeed, the latest Judicial Studies Board Specimen Directions now provide that, before an adverse inference can be drawn, the prosecution’s case must be "so strong that it clearly calls for an answer by him." There has therefore been raising of the bar. Having quoted this section of the present Specimen Directions, the ECtHR in Beckles gave them its approval. It can perhaps therefore be assumed that the ECtHR and the Specimen Directions on this point are now in agreement, and that the case against the accused must be more than simply a prima facie one before an adverse inference can be drawn.

It is clear that it is "essential" that the accused had access to legal advice prior to, or during, the interview: Murray v UK. The second area of adverse inferences in interview which has occupied judicial attention is how should the Court approach the reasons which the accused gives as to why he remained silent? The usual reason given is that he was advised by his legal adviser to do so. The issue of to what extent legal advice to remain silent should allow the accused to escape and adverse inference has once again developed if the changes in the Specimen Directions are anything to go by. Again, this has been case led. For example, in Condron v UK 8 BHRC 290 it was said, "…the very fact that an accused is advised by his lawyer to maintain his silence must also be given appropriate weight by the domestic court…". In R v Betts and Hall [2001] 2 Cr App R 257, this was taken further. Kay LJ said that it was whether the decision to remain silent was motivated by advice that was important, not the quality of that advice. The Specimen Directions are now very elaborate on this aspect. What they come down to is that the jury should not draw an adverse inference if they think that the accused may genuinely have failed to answer because of legal advice, rather than because he did not want to reveal his hand or had no hand to play. Once again these directions seem to have been approved by the ECtHR.

In the present case, the ECtHR held that the accused was faced in his interview with incriminating matters which clearly called for an explanation; thus that pre-condition was satisfied. However, the legal advice he had received from his solicitor to remain silent had not been adequately dealt with by the trial judge, who had left open the possibility that the jury might find it plausible that the accused had remained silent because of legal advice yet nonetheless might go on to draw an adverse inference. This was in accordance neither with Article 6, nor, it should be said, with the present Specimen Directions.