Evidence -

The Right to Silence

Previously:

•       Hall v R [1971] silence not evidence against the D b/c no obligation to comment

•       Parkes v R [1976] silence may = confession

•       Support: R v Collins [2004] On situation when failure to contradict an important lie

•       Judge prevent the jury -> speculating reasons D may have decided to remain silent

Changes b/c:

-          Increasing judicial unease about D abusing rights of not disclosing substance of their defence.

•       Ignored Law Comm ‘should remain same form’ YET Tories created new leg to ‘rebalance’ crim justice system to favour Pros & give balanced trials.

-          Criminal Justice and Public Order Act 1994 s 34 – 37

•       -ve: D. Wolchover, “Silent triumph of the coach and horses,” [2005]

•       1994 Act, mad a complete mess, was better before. Happened sine anyone noticing.

NOW:

-          Judge careful direction to jury on adverse inference form D’s silence. (-ve: lengthy & complicated)

•       Also some issues debated to do with Article 6 ECHR

•       -ve: C. Hodgetts: ‘psychological effects on individuals (jury)

•       Claimed: some benefits outweighed by cost/complexity/time spent.

•       Some lawyers and academics argue that the evidential benefits of the changes are outweighed by the cost, complexity and judicial time spent on it, and that there should be consideration of reverting back to the old common law position – not happened

•       Others feel it is a justified reform and allows for balanced trials

•       CJPOA 1994 has fourrelevantsections: silent when:

•       S. 34 - Silence upon being questioned (in the police station) (not yet/being charged)

•       -ve: Not all Qs asked by police are covered by s.34

•       PACE Code C Para 10.4

•       S. 35 - The effect of not giving evidence, remaining silent, at trial

•       Judge directs jury

•       -ve: not mandatory -> Jury use adverse inference BUT judge can’t ask if used. Support: R v Cowan [1996]

•       Judicial Studies Board -> model ans:

•       right to remain silent is D’s decision

•       Inferences from failure to give evidence can’t solely prove guilt

•       Adverse inference used when: only sensibly be attributed to D having no answer / no ability to stand up to cross-examination

•       S. 36 – D failure to account for the presence of any objects…