Controversial Issues During Pre-Trial Procedure
This case revolves around evidential issues that may have arisen during pre-trial procedures:
1. Was the rejection of Mike’s request for a solicitor, a breach of procedure, and the impact of any breach?
2. What effect does Mike’s silence, when questioned in the first interview, have on his defence?
3. Can any of Mike’s statements during the second interview, asking for a pardon or admitting his involvement in the offence and providing information on others, amount to a confession? If so, is this confession admissible at trial?
4. Can Bob’s refusal to answer questions at interview, on the basis of legal advice, cause an ‘adverse inference’ to be drawn?
5. Can Bob rely on evidence at the trial stating that he was not involved in the offence when he remained silent when interviewed? Does it matter that he did so, on the advice of his solicitor?
6. Is Jill’s witness statement admissible?
MIKE
In Northern Ireland the Police and Criminal Evidence (NI) Order 1989 (PACE) Codes of Practice regulate police procedures. Code C1 relates to the procedures police must abide by when persons are in detention or being questioned under police …show more content…
custody. A person in police custody must be informed that they have certain rights,2 such as the “right to consult privately with a solicitor”3. Lord Hope in, Harris v Ambrose4 states; “access to legal advice must be provided…from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed”5. In this case, Mike was arrested, cautioned and was interviewed regarding this charge. At this point Mike had not been offered access to legal advice but had requested to see a solicitor. Based on the precedent set in Harris6 and under PACE Code C, he was in police custody and was being interviewed, therefore his freedom was ‘significantly curtailed’ so he would be entitled to exercise his right to access legal advice at this point. Article 59(1)7 of PACE states, “a person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time”8. Under this Article DC Mills would have clearly been in breach of PACE.
However there are exceptions to this rule, e.g. a police officer may, under PACE, delay a person’s access to legal advice if he had reasonable grounds to believe that access to this right will “lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it”9. However, according to Keane & McKeown, this article has rarely been used in cases, as the instances when delay can be properly authorised will likely be infrequent10, this is also illustrated by Hodgson J in R v Samuel11; “a court which has to decide whether denial of access to a solicitor was lawful has to ask itself two questions: ‘did the officer believe?’…and ‘were there reasonable grounds for the belief?”12. Therefore, if DC Mills believed giving Mike access to a solicitor would have led to persons suspected of being involved in the offence being ‘tipped off’ then he could have been able to rely on this exception but a ‘danger’ may not qualify under the definition, therefore he may not be able to rely on this exception as a defence to a breach of Article 59. The procedural safeguard of the right to immediate access to legal advice is one of the few that is held to be fundamental under human rights instruments in criminal cases and particularly important in Northern Ireland given its history13, consequently the courts may unlikely hold any delay as a valid defence for the police.
Even if DC Mills could use the exception in Article 59(8)(b), under Article 59(6) of PACE, delaying or refusing a request of persons to gain access to legal advice will only be permitted, “(a) in the case of a person who is in police detention for a serious arrestable (now indictable14) offence; and (b) if an officer of at least the rank of superintendent authorises it”. Details of the burglary are not listed, the Theft Act (NI) 1969 Section 7 states that burglary is indictable with consent of the accused and automatically if the burglary was with intent to commit an indictable offence or commit violence. However even if it was an ‘indictable offence’, DC Mills would not have had the authority to authorise the delay in Mike’s request to a solicitor, therefore his actions may be found to be in breach of Article 59 of PACE15.
In addition to a possible breach of PACE, the refusal of legal representation could fall under Article 6 of the European Convention on Human Rights (ECHR) as illustrated by Salduz v Turkey.16 The Grand Chamber of the European Court of Human Rights (Court) stated that for a fair trial to remain practical and efficient, “…access to a lawyer should be provided from the first interrogation of a suspect by the police”17. Thus the refusal of a solicitor may also be a breach of Article 6 of the ECHR, given the decision in Salduz v Turkey18. In addition according to R v Murray19 when an accused is refused access to a lawyer during police investigations this amounts to a breach of Article 620 of the ECHR and under the Human Rights Act 1998 these rights can be applied in national courts.
What effect do these breaches have on the evidence obtained? The right to legal representation is guaranteed by ECHR Article 6 which would allow Mike to challenge any evidence obtained and any possible conviction in a national court in the ECHR. In addition under Article 76(1) of PACE a “court may refuse to allow evidence …..if it appears to the court that, … the admission of the evidence would have … an adverse effect on the fairness of the proceedings…” Thus DC Mills’ restriction of Mike’s right to legal representation could consequently lead to some or all of the evidence from the interview becoming inadmissible at trial.
With regard to Mike’s silence, according to Keane & McKeown, and Berger 21 the historical ‘right to silence’ bases itself in both the privilege persons have against incriminating themselves and the right not to have at trial adverse inferences, drawn from their silence during interviews. According Roberts & Zuckerman and illustrated by Saunders v UK22 this right is a “generally recognised international standard which lies at the heart of the notion of a fair procedure under Article 6”23. The ECHR recognises that under Article 6 persons are entitled to the right to silence, although this is not specifically detailed within the legislation24 but is illustrated in the judgement in Funke v France25 where the ECHR held that Article 6 includes the right of persons charged with a criminal offence to remain silent and not to incriminate themselves26.
One of the leading cases from Northern Ireland was that of Murray v UK27. In this case the Court ruled on the fairness of the silence provisions in the circumstance of denying access to legal advice as adverse inferences were drawn from his silence28. Guidance was set as to when adverse inferences may be drawn, as Article 6 is not an absolute right29; “whether the drawing of inference from an accused silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case”30. Therefore the jury could not draw adverse inferences from Mike’s silence unless it was clear when looking at the guidance in Murray31. In addition, under Article 2(4) of the Criminal Evidence (NI) Order 1988, “a person shall not be committed for trial on the basis of an inference from his/her silence alone”. This was confirmed in Murray32 where the Court declared that to convict an accused solely on their silence would be incompatible with Article 633; for that reason even if the jury found adverse inferences from Mike’s silence they could not convict him on this basis alone.
The legal definition of a confession under Article 70 of PACE is, “any statement wholly or partly adverse to the person who made it.”. In Mike’s first statement he says that he will provide information on others, therefore this would not be in any way adverse to him so would not amount to a confession. Mike then admitted his involvement in the offence which would be ‘wholly or partly’ adverse to him as he is essentially pleading guilty to the charge34. However according to the Murray35 case when an accused is refused access to a lawyer during police investigations this amounts to a breach of Article 636 of the ECHR. Thus, can a confession made under a breach of a Convention Article and PACE codes of practice be admissible?
The European Court of Human Rights has stated that when incriminating statements made during police questioning without access to a lawyer are used to convict the accused, the “rights of the defence will in principle be irretrievably prejudiced”37. This was upheld in the Cadder case38, where the Supreme Court stated there was a breach of Article 6 when the Crown Court relied on statements made without legal advice39. However, Lord Hope made an exception to this, “a person…can provide ... self-incriminating answers if he is willing to do this, and his answers will be admissible if they are truly voluntary”40. The question for the jury to determine in Mike’s case would be; was Mike’s incriminating statement truly voluntary or was he enticed to make it, as the Court stated in Gäfgen v Germany41 the issue of admissibility in these types of cases is a matter of domestic law which should be decided by the domestic courts42.
PACE states “In any criminal proceedings a confession made by an accused person may be given in evidence against him so far as it is ... not excluded by the court in pursuance of this section”43, therefore Mike’s confession could be admissible, subject to any exclusionary rules. Article 74(2)44 governs the exclusionary rules which the judge may use to find the confession evidence inadmissible, “…(a) oppression of the person who made it, or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession”45.
Fulling46 described oppression as “…the exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment”47. There must be a causal link between the oppression and the confession for it to be inadmissible. In this case there is no suggestion of oppression but could DC Mills’ suggestion of information being taken into account by the judge at trial be an ‘inducement’ under Article 74(2)(b)?
According to Choo; “the principle that the innocent must be protected from conviction and punishment has led to calls for the strengthening of safeguards against unreliable evidence”48. Confessions can be excluded which may have been obtained by anything said or done which influenced the defendant to make a statement49. It appears to be a straightforward test of reliability however according to Roberts & Zuckerman the test requires that the court determines, not if the confession was reliable but instead the conditions under which the confession was obtained50. DPP v Ping Lin51 is an example of this; the defendant, after admitting that he had been dealing in heroin, attempted to making a deal with the police on disclosing his supplier to which the officer replied: “if you show the judge that you have helped the police to trace bigger drug people, I am sure he will bear it in mind when he sentences you”52. Subsequently the defendant revealed his supplier, the House of Lords held that these statements were voluntary as there was no inducement present before the first statement was made, therefore the causal link between anything said or done by the police and the confession had not existed. Distinguishing Mike’s situation from DPP v Ping Lin53 on the basis that no admission was made before the suspected inducement by DC Mills, thus the evidence could be inadmissible.
BOB
Toney argues54 that the primary aim of police questioning is to obtain an admission from persons whom they consider are guilty of the offence in question, yet Bob remained silent when questioned. The rules around the right to silence when questioned are complex. The common law rules where altered by the Criminal Evidence (NI) Order 1988 (CE), “a person shall not be committed for trial on the basis of an inference from his or her silence alone”55. This seems straightforward yet Article 3(1) 56 allows a court or jury to “draw such inferences from the failure as appear proper”, therefore according to Cooper57 when a person remains silent when questioned in police custody this may have consequences for his defence, the nature and severity differ but the accused runs the risk of adverse inferences being drawn from their silence.
One factor which influences an accused decision on whether to answer police questions is the advice given to them by a legal advisor58. The legal advisor must balance the weight of the risk of the accused making adverse statements against the inferences that a jury may be allowed to draw if he exercises his right to remain silent59. This balancing act was discussed in Murray v UK60, “if the accused opts to break his silence…he runs the risk of prejudicing his defence without necessarily removing the possibility of inferences being drawn against him”61. In this case as a result of this legal advice Bob chose to remain silent when questioned by DC Lamb, which he is entitled to do62; however he must have objective reasons for keeping silent and this must be balanced with the public interest of an account being given by a suspect to the police63. According to Cooper64 the jury should ask themselves when looking at all the circumstances whether it was reasonable to expect Bob to have mentioned his whereabouts when questioned65.
Can Bob then rely on a defence which he only raises at trial? The police caution, “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court”, enforces the right of silence for the accused but implies that if you raise a defence in trial that you did not raise when questioned it may not be upheld as an admissible defence in court. The CE Act states that a court is permitted to draw adverse inferences from person’s failure to mention any fact which he relies on in his defence or which he could have reasonably been expected to mention when questioned or charged66. Lord Bingham in R v Argent67 set out formal conditions that must be satisfied before an adverse inference can be drawn, such as the failure occurred during police questioning before being charged or that it was information that he could have reasonably been expected to disclose68. Article 2 of the CE Act provides that a person shall not be convicted solely on any inferences drawn from silence but that the court may draw inferences that ‘appear proper’69.
In R v Condron70 it was held that it was necessary for the accused to state the basis or reason on which he choose to remain silent and that the jury must be satisfied that this silence contributed to an inadequacy of their defence in order to find adverse inferences71. Under Article 6 of the ECHR the jury are entitled to draw inferences from the accused failure to state his presence at a specific place at or around the time that the offence took place. This was upheld in R v Murray72, the courts allowed the drawing of adverse inferences where the aspects of the evidence clearly called for the accused to explain and he failed to do so; therefore the jury could draw adverse inferences from Bob’s silence.
Does following legal advice provide a shield?
Bob may argue he was silent on the grounds of legal advice however; silence “does not give a licence to a guilty person to shield behind the advice of his solicitor”73. In R v Hoare and Pierce74 the Court of Appeal held that when the accused remains silent on the advice of his solicitor then a jury should consider whether it was ‘reasonable’ for a defendant to rely on such advice. The test of ‘reasonableness’ does not depend on whether the advice was legally correct75 or whether it complied with the Law Society's guidelines76 but the standard ‘reasonableness’ test. Thus, if the jury decided it was ‘unreasonable’, Bob may not be able to hide behind the fact that he remained silent on the advice of his solicitor and an adverse inference could be drawn from his
silence.
With regard to Jill’s statement, the general rule for witnesses according to Keane & McKeown, is that anyone is a competent witness and all competent witnesses are compellable to give evidence in court77. There is nothing to suggest that Jill is not a competent or compellable witness, therefore her evidence of Bob’s whereabouts is relevant to the case and could be relied upon in court as Keane & McKeown state, “all relevant evidence is admissible”. However, Jackson78 argues that Article 679 only allows inferences to be drawn when “a person has failed to account…for his presence in a place at or about the time an offence for which he has been arrested”80. Thus as Bob made statements of his presence ‘about’ the time of the offence, the jury may not be entitled to draw inferences from Jill’s statement as there was no failure to account for his presence.
Conclusion
The refusal of Mike’s right to legal representation was in all probability a breach of Article 59 of PACE and Article 6 of ECHR. His confession may have been induced by DC Mill’s statement therefore rendering it unreliable. Mike’s silence could not be used as the sole factor for his conviction, but adverse inferences may be drawn. However the courts are not keen to allow the use of adverse inferences as R v Bowden81 stated that it restricts a common law right of protecting the defendant against the risk of injustice82. Therefore it is likely that all of the evidence could be ruled as inadmissible given the breaches of Article 59 and 76 of PACE. The judge has final say on admissibility however but using his discretion to refuse to admit evidence83, “where its probable prejudicial effect so outweighed its probative value as to make its admission unfair to the accused”84 may lead to its exclusion and if it wasn’t excluded it could later be challenged in the ECHR under Article 6.
A jury may be able to draw adverse inferences from Bob’s silence, despite his reliance on legal advice to remain silent, but there is doubt as he only has to account for his whereabouts at or around the time of the offence. Again the court has the discretion to exclude evidence which was obtained in a manner that would have an adverse effect on the fairness of the trial if admitted85. Therefore even though Bob’s silence could be admissible if the judge believes that it would affect his right to a fair trial under ECHR Article 6 then he may use his judicial discretion to remove evidence from court.
Jill’s statement is more than likely admissible as evidence, but may have little or no affect on Bob’s conviction.
1. Was the rejection of Mike’s request for a solicitor, a breach of procedure, and the impact of any breach?
2. What effect does Mike’s silence, when questioned in the first interview, have on his defence?
3. Can any of Mike’s statements during the second interview, asking for a pardon or admitting his involvement in the offence and providing information on others, amount to a confession? If so, is this confession admissible at trial?
4. Can Bob’s refusal to answer questions at interview, on the basis of legal advice, cause an ‘adverse inference’ to be drawn?
5. Can Bob rely on evidence at the trial stating that he was not involved in the offence when he remained silent when interviewed? Does it matter that he did so, on the advice of his solicitor?
6. Is Jill’s witness statement admissible?
MIKE
In Northern Ireland the Police and Criminal Evidence (NI) Order 1989 (PACE) Codes of Practice regulate police procedures. Code C1 relates to the procedures police must abide by when persons are in detention or being questioned under police …show more content…
custody. A person in police custody must be informed that they have certain rights,2 such as the “right to consult privately with a solicitor”3. Lord Hope in, Harris v Ambrose4 states; “access to legal advice must be provided…from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed”5. In this case, Mike was arrested, cautioned and was interviewed regarding this charge. At this point Mike had not been offered access to legal advice but had requested to see a solicitor. Based on the precedent set in Harris6 and under PACE Code C, he was in police custody and was being interviewed, therefore his freedom was ‘significantly curtailed’ so he would be entitled to exercise his right to access legal advice at this point. Article 59(1)7 of PACE states, “a person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time”8. Under this Article DC Mills would have clearly been in breach of PACE.
However there are exceptions to this rule, e.g. a police officer may, under PACE, delay a person’s access to legal advice if he had reasonable grounds to believe that access to this right will “lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it”9. However, according to Keane & McKeown, this article has rarely been used in cases, as the instances when delay can be properly authorised will likely be infrequent10, this is also illustrated by Hodgson J in R v Samuel11; “a court which has to decide whether denial of access to a solicitor was lawful has to ask itself two questions: ‘did the officer believe?’…and ‘were there reasonable grounds for the belief?”12. Therefore, if DC Mills believed giving Mike access to a solicitor would have led to persons suspected of being involved in the offence being ‘tipped off’ then he could have been able to rely on this exception but a ‘danger’ may not qualify under the definition, therefore he may not be able to rely on this exception as a defence to a breach of Article 59. The procedural safeguard of the right to immediate access to legal advice is one of the few that is held to be fundamental under human rights instruments in criminal cases and particularly important in Northern Ireland given its history13, consequently the courts may unlikely hold any delay as a valid defence for the police.
Even if DC Mills could use the exception in Article 59(8)(b), under Article 59(6) of PACE, delaying or refusing a request of persons to gain access to legal advice will only be permitted, “(a) in the case of a person who is in police detention for a serious arrestable (now indictable14) offence; and (b) if an officer of at least the rank of superintendent authorises it”. Details of the burglary are not listed, the Theft Act (NI) 1969 Section 7 states that burglary is indictable with consent of the accused and automatically if the burglary was with intent to commit an indictable offence or commit violence. However even if it was an ‘indictable offence’, DC Mills would not have had the authority to authorise the delay in Mike’s request to a solicitor, therefore his actions may be found to be in breach of Article 59 of PACE15.
In addition to a possible breach of PACE, the refusal of legal representation could fall under Article 6 of the European Convention on Human Rights (ECHR) as illustrated by Salduz v Turkey.16 The Grand Chamber of the European Court of Human Rights (Court) stated that for a fair trial to remain practical and efficient, “…access to a lawyer should be provided from the first interrogation of a suspect by the police”17. Thus the refusal of a solicitor may also be a breach of Article 6 of the ECHR, given the decision in Salduz v Turkey18. In addition according to R v Murray19 when an accused is refused access to a lawyer during police investigations this amounts to a breach of Article 620 of the ECHR and under the Human Rights Act 1998 these rights can be applied in national courts.
What effect do these breaches have on the evidence obtained? The right to legal representation is guaranteed by ECHR Article 6 which would allow Mike to challenge any evidence obtained and any possible conviction in a national court in the ECHR. In addition under Article 76(1) of PACE a “court may refuse to allow evidence …..if it appears to the court that, … the admission of the evidence would have … an adverse effect on the fairness of the proceedings…” Thus DC Mills’ restriction of Mike’s right to legal representation could consequently lead to some or all of the evidence from the interview becoming inadmissible at trial.
With regard to Mike’s silence, according to Keane & McKeown, and Berger 21 the historical ‘right to silence’ bases itself in both the privilege persons have against incriminating themselves and the right not to have at trial adverse inferences, drawn from their silence during interviews. According Roberts & Zuckerman and illustrated by Saunders v UK22 this right is a “generally recognised international standard which lies at the heart of the notion of a fair procedure under Article 6”23. The ECHR recognises that under Article 6 persons are entitled to the right to silence, although this is not specifically detailed within the legislation24 but is illustrated in the judgement in Funke v France25 where the ECHR held that Article 6 includes the right of persons charged with a criminal offence to remain silent and not to incriminate themselves26.
One of the leading cases from Northern Ireland was that of Murray v UK27. In this case the Court ruled on the fairness of the silence provisions in the circumstance of denying access to legal advice as adverse inferences were drawn from his silence28. Guidance was set as to when adverse inferences may be drawn, as Article 6 is not an absolute right29; “whether the drawing of inference from an accused silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case”30. Therefore the jury could not draw adverse inferences from Mike’s silence unless it was clear when looking at the guidance in Murray31. In addition, under Article 2(4) of the Criminal Evidence (NI) Order 1988, “a person shall not be committed for trial on the basis of an inference from his/her silence alone”. This was confirmed in Murray32 where the Court declared that to convict an accused solely on their silence would be incompatible with Article 633; for that reason even if the jury found adverse inferences from Mike’s silence they could not convict him on this basis alone.
The legal definition of a confession under Article 70 of PACE is, “any statement wholly or partly adverse to the person who made it.”. In Mike’s first statement he says that he will provide information on others, therefore this would not be in any way adverse to him so would not amount to a confession. Mike then admitted his involvement in the offence which would be ‘wholly or partly’ adverse to him as he is essentially pleading guilty to the charge34. However according to the Murray35 case when an accused is refused access to a lawyer during police investigations this amounts to a breach of Article 636 of the ECHR. Thus, can a confession made under a breach of a Convention Article and PACE codes of practice be admissible?
The European Court of Human Rights has stated that when incriminating statements made during police questioning without access to a lawyer are used to convict the accused, the “rights of the defence will in principle be irretrievably prejudiced”37. This was upheld in the Cadder case38, where the Supreme Court stated there was a breach of Article 6 when the Crown Court relied on statements made without legal advice39. However, Lord Hope made an exception to this, “a person…can provide ... self-incriminating answers if he is willing to do this, and his answers will be admissible if they are truly voluntary”40. The question for the jury to determine in Mike’s case would be; was Mike’s incriminating statement truly voluntary or was he enticed to make it, as the Court stated in Gäfgen v Germany41 the issue of admissibility in these types of cases is a matter of domestic law which should be decided by the domestic courts42.
PACE states “In any criminal proceedings a confession made by an accused person may be given in evidence against him so far as it is ... not excluded by the court in pursuance of this section”43, therefore Mike’s confession could be admissible, subject to any exclusionary rules. Article 74(2)44 governs the exclusionary rules which the judge may use to find the confession evidence inadmissible, “…(a) oppression of the person who made it, or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession”45.
Fulling46 described oppression as “…the exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment”47. There must be a causal link between the oppression and the confession for it to be inadmissible. In this case there is no suggestion of oppression but could DC Mills’ suggestion of information being taken into account by the judge at trial be an ‘inducement’ under Article 74(2)(b)?
According to Choo; “the principle that the innocent must be protected from conviction and punishment has led to calls for the strengthening of safeguards against unreliable evidence”48. Confessions can be excluded which may have been obtained by anything said or done which influenced the defendant to make a statement49. It appears to be a straightforward test of reliability however according to Roberts & Zuckerman the test requires that the court determines, not if the confession was reliable but instead the conditions under which the confession was obtained50. DPP v Ping Lin51 is an example of this; the defendant, after admitting that he had been dealing in heroin, attempted to making a deal with the police on disclosing his supplier to which the officer replied: “if you show the judge that you have helped the police to trace bigger drug people, I am sure he will bear it in mind when he sentences you”52. Subsequently the defendant revealed his supplier, the House of Lords held that these statements were voluntary as there was no inducement present before the first statement was made, therefore the causal link between anything said or done by the police and the confession had not existed. Distinguishing Mike’s situation from DPP v Ping Lin53 on the basis that no admission was made before the suspected inducement by DC Mills, thus the evidence could be inadmissible.
BOB
Toney argues54 that the primary aim of police questioning is to obtain an admission from persons whom they consider are guilty of the offence in question, yet Bob remained silent when questioned. The rules around the right to silence when questioned are complex. The common law rules where altered by the Criminal Evidence (NI) Order 1988 (CE), “a person shall not be committed for trial on the basis of an inference from his or her silence alone”55. This seems straightforward yet Article 3(1) 56 allows a court or jury to “draw such inferences from the failure as appear proper”, therefore according to Cooper57 when a person remains silent when questioned in police custody this may have consequences for his defence, the nature and severity differ but the accused runs the risk of adverse inferences being drawn from their silence.
One factor which influences an accused decision on whether to answer police questions is the advice given to them by a legal advisor58. The legal advisor must balance the weight of the risk of the accused making adverse statements against the inferences that a jury may be allowed to draw if he exercises his right to remain silent59. This balancing act was discussed in Murray v UK60, “if the accused opts to break his silence…he runs the risk of prejudicing his defence without necessarily removing the possibility of inferences being drawn against him”61. In this case as a result of this legal advice Bob chose to remain silent when questioned by DC Lamb, which he is entitled to do62; however he must have objective reasons for keeping silent and this must be balanced with the public interest of an account being given by a suspect to the police63. According to Cooper64 the jury should ask themselves when looking at all the circumstances whether it was reasonable to expect Bob to have mentioned his whereabouts when questioned65.
Can Bob then rely on a defence which he only raises at trial? The police caution, “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court”, enforces the right of silence for the accused but implies that if you raise a defence in trial that you did not raise when questioned it may not be upheld as an admissible defence in court. The CE Act states that a court is permitted to draw adverse inferences from person’s failure to mention any fact which he relies on in his defence or which he could have reasonably been expected to mention when questioned or charged66. Lord Bingham in R v Argent67 set out formal conditions that must be satisfied before an adverse inference can be drawn, such as the failure occurred during police questioning before being charged or that it was information that he could have reasonably been expected to disclose68. Article 2 of the CE Act provides that a person shall not be convicted solely on any inferences drawn from silence but that the court may draw inferences that ‘appear proper’69.
In R v Condron70 it was held that it was necessary for the accused to state the basis or reason on which he choose to remain silent and that the jury must be satisfied that this silence contributed to an inadequacy of their defence in order to find adverse inferences71. Under Article 6 of the ECHR the jury are entitled to draw inferences from the accused failure to state his presence at a specific place at or around the time that the offence took place. This was upheld in R v Murray72, the courts allowed the drawing of adverse inferences where the aspects of the evidence clearly called for the accused to explain and he failed to do so; therefore the jury could draw adverse inferences from Bob’s silence.
Does following legal advice provide a shield?
Bob may argue he was silent on the grounds of legal advice however; silence “does not give a licence to a guilty person to shield behind the advice of his solicitor”73. In R v Hoare and Pierce74 the Court of Appeal held that when the accused remains silent on the advice of his solicitor then a jury should consider whether it was ‘reasonable’ for a defendant to rely on such advice. The test of ‘reasonableness’ does not depend on whether the advice was legally correct75 or whether it complied with the Law Society's guidelines76 but the standard ‘reasonableness’ test. Thus, if the jury decided it was ‘unreasonable’, Bob may not be able to hide behind the fact that he remained silent on the advice of his solicitor and an adverse inference could be drawn from his
silence.
With regard to Jill’s statement, the general rule for witnesses according to Keane & McKeown, is that anyone is a competent witness and all competent witnesses are compellable to give evidence in court77. There is nothing to suggest that Jill is not a competent or compellable witness, therefore her evidence of Bob’s whereabouts is relevant to the case and could be relied upon in court as Keane & McKeown state, “all relevant evidence is admissible”. However, Jackson78 argues that Article 679 only allows inferences to be drawn when “a person has failed to account…for his presence in a place at or about the time an offence for which he has been arrested”80. Thus as Bob made statements of his presence ‘about’ the time of the offence, the jury may not be entitled to draw inferences from Jill’s statement as there was no failure to account for his presence.
Conclusion
The refusal of Mike’s right to legal representation was in all probability a breach of Article 59 of PACE and Article 6 of ECHR. His confession may have been induced by DC Mill’s statement therefore rendering it unreliable. Mike’s silence could not be used as the sole factor for his conviction, but adverse inferences may be drawn. However the courts are not keen to allow the use of adverse inferences as R v Bowden81 stated that it restricts a common law right of protecting the defendant against the risk of injustice82. Therefore it is likely that all of the evidence could be ruled as inadmissible given the breaches of Article 59 and 76 of PACE. The judge has final say on admissibility however but using his discretion to refuse to admit evidence83, “where its probable prejudicial effect so outweighed its probative value as to make its admission unfair to the accused”84 may lead to its exclusion and if it wasn’t excluded it could later be challenged in the ECHR under Article 6.
A jury may be able to draw adverse inferences from Bob’s silence, despite his reliance on legal advice to remain silent, but there is doubt as he only has to account for his whereabouts at or around the time of the offence. Again the court has the discretion to exclude evidence which was obtained in a manner that would have an adverse effect on the fairness of the trial if admitted85. Therefore even though Bob’s silence could be admissible if the judge believes that it would affect his right to a fair trial under ECHR Article 6 then he may use his judicial discretion to remove evidence from court.
Jill’s statement is more than likely admissible as evidence, but may have little or no affect on Bob’s conviction.