The first appeals to provide an opportunity for consideration of the scope and implementation of section 35 of the Criminal Justice and Public Order Act 1994 came before the Lord Chief Justice on 5 October 1995. Judgment was delivered on 12 October.
The three cases – Cowan, Gayle and Riccardi – were unrelated. All three defendants were detained and questioned under pre-Act conditions and the first two defendants remained silent. All three remained silent at trial.
The first two appeals were allowed, while the third was not. The separate decisions hinged on the terms in which the trial judge had directed the jury about the proper inferences to be drawn from silence.
The section itself, Section 35 (iii), gives no guidance about what proper inference is, nor does it impose any obligatory requirement that may be drawn.
Important issues of principle are raised by this legislation, ones which go to the heart of criminal jurisprudence: the burden of proof; the presumption of innocence; the privilege of self incrimination; and the right to silence.
These valuable safeguards for the innocent and the vulnerable against the exercise of arbitrary and oppressive power by the state and its agencies of prosecution are seriously undermined by this statute.
The European Court of Human Rights has accepted that these principles are enshrined in the convention. Article 6 concerns the right to a fair trial and both the commission and the court have interpreted it as embracing the right to silence and the privilege against self-incrimination – Funke (A/256A 1993 16 EHRR 297) and John Murray v UK (1995 18 EHRR CD1-23 App 18731/91).
Article 6 (2) preserves the presumption of innocence. The international covenant on civil and political rights contains similar provisions (Article 14).
My contention is that where there is any form of coercion the right to a fair trial is denied and the burden of proof is, in practice reversed, as is the presumption of innocence. For example, a right to silence is meaningless if its exercise entails the imposition of penalties or sanctions, particularly the assumption of guilt.
This view is endorsed by the Royal Commission on page 56 of the Runciman report. It says: “Where the defendant does not give evidence in person the prosecution may question and the judge comment on the explanation advanced through counsel or the calling of other evidence or both. But neither the prosecution nor the judge should invite the jury to draw from the defendant's failure to give evidence that his or her explanation is less deserving of being believed.”
On page 55 the commission's report says: “Given the principle that the burden of proof should rest on the prosecution, it must be wrong for defendants who leave the prosecution to prove its case to be exposed to comment by either the prosecution or the judge to the effect that their failure to enter the witness box corroborates the prosecution case.”
These issues are currently being canvassed in the European courts in a number of cases other than John Murray. Most derive from Northern Ireland, where similar legislation has been in force since 1988 (Article 4, Criminal Evidence Northern Ireland Order).
Kevin Murray came before the commission in 1995, having been to the House of Lords (1993 97, CAR 151). The Ernest Saunders case was deferred by the European Court on the issue of self-incriminatory statements (1994 18 EHRR CD 23) while the Court of Appeal reconsidered his appeal in October 1995.
So far, there is no definitive decision adverse to the UK under this legislation and there is yet to be a case taken to Europe from the UK. There is, however, the important dissenting opinion of Nicholas Bratza, the UK's appointee to the commission, in the John Murray case (CD 16).
He said: “In reaching the view that there has been no violation of the convention, I attach considerable importance to the fact that adverse inferences under the 1988 order are drawn by a judge sitting without a jury.
“Not only is a judge by his training and legal experience likely to be better equipped than a lay juryman to draw only such inferences as are justified from a defendant's silence but, as pointed out by the commission, a judge in Northern Ireland gives a reasoned judgment as to the grounds on which he decides to draw inferences and the weight which he gives to such inferences in any particular case; whether the inferences have been properly drawn in all the circumstances and whether proper weight has been given to them by the trial judge is then subject to review by the Court of Appeal in Northern Ireland.
“The same safeguard against unfairness does not appear to me to exist in the case of a jury trial. When it is the jury which must decide, without giving reasons, what adverse inferences, if any, to draw against an accused from his silence and what weight to attach to such inferences in arriving at a verdict, the risk of unfairness occurring appears to me to be substantially increased, however carefully formulated a judge's direction to the jury might be.”
However, the Lord Chief Justice, in the three domestic judgments, has rejected these general criticisms. He has nevertheless set down some important markers for the implementation of Section 35:
he has emphasised the right to silence remains and all juries should be reminded of this by the judge;
the burden and standard of proof remain unaltered and the jury should be so directed;
the jury must decide separately from the judge at the end of the prosecution case whether there is a prima facie case against any individual defendant before it can consider the effect of silence;
the judge does not have to direct the jury about drawing adverse inferences in inappropriate cases. Adopting the words of Lord Justice Kelly in McLernon (1990 10 NI JB 91), he said: “The court has a complete discretion as to whether inferences should be drawn or not drawn and if drawn what their nature, extent, and degree of adversity may be.”
These are significant guidelines. In practice, counsel should now address the trial judge at a convenient point prior to final speeches and summing up in the absence of the jury to establish whether it is a proper case for an adverse inference direction or merely the traditional Bathurst (52 CAR 251) and, if it is appropriate, how far it should go.
The court has held that counsel has a duty to provide 'evidence before the judge of why a defendant has remained silent'. Counsel's assertions will not be regarded as sufficient. This will clearly lead to complex and sensitive situations for advocates where decisions to remain silent are based on assessments made about the competence or confidence of the client regarding the strength of the case against them. It will be even more sensitive if the decision not to give evidence relates to previous convictions and the risk of cross-examination. However, none of this found approval in the Court of Appeal and will not obviate the risk of adverse comment.
Examples of 'evidence' or silence may arise where there is material that has failed to prevent Section 35 being triggered in the first place, such as: “where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence”. It is thought that this section is intended to cover insanity and diminished responsibility but it may not cover less severe conditions. Although it may be difficult, defendants suffering from fear or duress may be able to put this forward without jeopardising the source they are trying to protect.
Nevertheless, it seems that if, a judge decides that the case is not an exception within section 35 (1) (b), nor that it is an inappropriate case for a direction, the evidence he has rejected in the absence of a jury will have to be adduced in front of the jury in order for them to take account of it in deciding whether they should draw any inference let alone an adverse one from the silence of a defendant in court.
A model direction has been put forward by the Judicial Studies Board: “The defendant has not given evidence. That is his right. But the law is that you may draw such inference as appears proper from the failure to do so. Failure to give evidence on its own cannot prove guilt but depending on the circumstances, you may hold his failure against him when deciding whether he is guilty.”
And where evidence is given: “There is evidence before you on the basis of which the defendant's advocate invites you not to hold it against the defendant that he has not given evidence before you, namely…If you think that due to this evidence you should not hold it against the defendant that he has not given evidence, do not do so. But if the evidence he relies on presents no adequate explanation for his absence from the witness box, you may hold his failure to give evidence against him. You do not have to do so.”
Generally: “What proper inferences can you draw from the defendant's decision not to give evidence before you? If you conclude that there is a case to answer, you may think the defendant should go into the witness box to give an answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence.”
These procedures give rise to other complications that have not been properly thought through. The Court of Appeal has decided that section 35 (2) is obligatory and that, in line with the Lord Chief Justice's practice direction in April 1995, where a defendant indicates at the close of the prosecution case that he/she does not intend to give evidence, the judge, in the presence of the jury, has to warn the defendant that his failure to give evidence will permit the jury to draw such inferences as appear proper.
This could be highly prejudicial, particularly where a judge later decides that he is not going to ask the jury to draw any inferences at all, having heard the extent of defence 'evidence' for silence. The judge then has to ask the jury to disregard the warning he gave at the halfway stage. These are mental gymnastics of the kind lawyers are familiar with. But arguments querying a judge using the full wording of the section at different stages have been rejected.
In May 1995 in the Crown Court in Belfast, a similar provision under the Northern Irish legislation was challenged by five silks who felt that the judge's function in questioning whether advice tendered by them to their clients about giving evidence transgressed professional privilege.
They apparently refused to continue the trial until a formula was agreed. In the event, the trial judge recommended that a working party be established to see if wider agreement could be achieved. The results of this are not yet known.