A direction to a jury about an accused person’s silence during police questioning was inadequate to protect the right to a fair trial. The applicants had been advised by their solicitor to remain silent during interview because they were withdrawing from heroin. The judge allowed the jury the option of drawing an adverse inference from their silence.
Held: The right of silence lay at the heart of a right to a fair trial. A court should be particularly careful before allowing such adverse inferences: ‘the fact that the applicants’ exercised their right to silence at the police station is relevant to the determination of the fairness issue. However that fact does not itself preclude the drawing of an adverse inference . . Similarly, the fact that the issue of the applicants’ silence was left to a jury cannot of itself be considered incompatible with the requirements of a fair trial. It is, rather, another relevant consideration to be weighed in the balance when assessing whether or not it was fair to do so in the circumstances.’ It was mandatory, when giving guidance to the jury on s.34, to direct the jury that they should not draw an adverse inference from silence unless they were satisfied that the silence could only be attributed to the defendant having no answer to the Crown’s case, or none that would stand up to cross-examination.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; No separate issue under Art. 6-2; Not necessary to examine Art. 6-3-b and 6-3-c; Costs and expenses partial award – Convention proceedings
Times 09-May-2000, 35718/97, (2001) 31 EHRR 1, [2000] ECHR 191, [2000] Po LR 139, 8 BHRC 290, [2000] Crim LR 679
Worldlii, Bailii
Criminal Justice and Public Order Act 19945, European Convention on Human Rights 6
Human Rights
Citing:
Appeal from – Regina v Condron, Condron CACD 17-Oct-1996
The defendants were charged with the supply of heroin. They had declined to answer police questions and it was on the record that their solicitor had advised them not to do so, on the grounds that he considered them unfit because they were . .
Cited by:
Cited – Raymond Christopher Betts, John Anthony Hall v Regina CACD 9-Feb-2001
The defendants appealed convictions for causing grievous bodily harm. During interviw, the solicitor had advised that since the police had failed to make proper disclosure of the evidence, his client should not answer. He now appealed complaining of . .
Cited – Collins and Keep v Regina CACD 28-Jan-2004
When arrested with a co-defendant, C had said nothing as his co-defendant gave a false explanation. He now appealed his conviction saying that the judge had left with the jury the question of whether he was adopting that lie by his own silence.
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
Cited – Regina v Boyle and Another CACD 25-Aug-2006
The appellants had been convicted of murder. They complained that the judge had misdirected the jury as to the effect of their silence and the inferences to be drawn.
Held: The appeals failed. Whilst the direction on s34 was defective, it had . .
Cited – Webster v Regina CACD 1-Dec-2010
The defendant appealed against his conviction under the 1889 Act for making a corrupt gift to a local government officer. He said that the 1916 Act placed an unfair burden on him to prove that the gift was not corruptly given.
Held: The appeal . .
Cited – Black v Regina CACD 17-Jul-2020
Disclosure Sufficient to Support Inference
The court was asked whether sufficient evidence had been adduced about the strength of the prosecution case at the time of interview, to permit an adverse inference to be drawn from the failure to mention specific facts pursuant to section 34 of the . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Evidence
Leading Case
Updated: 14 November 2021; Ref: scu.165872