The Right to Silence and Adverse Inferences in Interview
Prior to 1994 a suspect in criminal proceedings in the UK enjoyed a largely unfettered right to remain silent when being interviewed under caution. However, Sections 34-37 of the Criminal Justice and Public Order Act (1994) allowed the court to draw an adverse inference from the defendant’s silence in a number of defined circumstances. This paper focuses specifically on the adverse inference to be drawn from silence during the interview process.
The terms of the statute are set out below:
“Effect of accused’s failure to mention facts when questioned or charged.
(1) Where, in any proceedings against a person for an offence, evidence is given that the accused—
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
(2) Where this subsection applies—
(a) a magistrates’ court inquiring into the offence as examining justices;
(b) a judge, in deciding whether to grant an application made by the accused under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.
(2A) Where the accused was at an authorised place of detention at the time of the failure, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in subsection (1) above.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
(4) This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above “officially informed” means informed by a constable or any such person.
(5)This section does not—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section; or
(b) preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section.
(6) This section does not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this section.”
(Criminal Justice and Public Order Act (1994))
The key objectives of s34 are twofold:
1. To discourage defendants from running “ambush” defences late in the trial process;
2. To encourage defendants to make early disclosure of any defence or fact which is consistent with their innocence.
In R v Argent (1997) 2 Cr App R 27, Lord Bingham set out the following six criteria which must be satisfied before an adverse inference can be drawn from an accused’s silence:
1. There must be proceedings against the person for an offence;
2. The failure to mention a relevant fact must have occurred pre-charge or on charge;
3. The failure must have occurred whilst the accused was being interviewed under caution;
4. The questioning must have been directed at trying to discover whether and by whom an offence was committed;
5. The failure of the accused must have been to mention a fact relied on in their defence to those proceedings;
6. The failure must have been to have failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned.
Anyone interviewed as a suspect in a criminal investigation will first be cautioned as follows: “You do not have to say anything. But it may harm your defence if you do not mention when questioned something that you later rely on in court. Anything you do say may be given in evidence”.
(PACE Code C Paragraph 10.4)
In practice there are essentially three options open to the suspect when being interviewed under caution, namely:
1. To answer all questions in full;
2. To remain silent; and
3. To provide a prepared statement setting out the defence and any relevant facts relied on and thereafter to remain silent.
In deciding which option to recommend the legal adviser must weigh up several factors including any adverse inference that might be drawn at trial. The key determining factor is likely to be the extent of the pre-interview disclosure provided by the police or other investigating body.
There is no legal obligation on the police to give any disclosure to a suspect or their legal adviser prior to an interview. However, there is a line of case law which has decided that where little or no disclosure of the case is given so as to render a legal adviser incapable of usefully advising their client, then this may amount to a good reason for a suspect to remain silent. Consequently the investigator will generally disclose sufficient information to enable a suspect to understand the nature and circumstances of their arrest. That does not generally mean that they will disclose what might amount to a prima facie case or give a full briefing to the legal adviser. However, where they decide to withhold information they must be prepared to justify that decision in any future proceedings.
Answering Questions in Full
Where detailed disclosure is provided which fully sets out the alleged offences and provides supporting evidence in the form of documents and/or witness statements the impetus will be towards providing a full explanation in interview. However, before doing so it is imperative to obtain full instructions from the client. This should (where practicable) include obtaining any relevant exculpatory documents. Consideration should also be given to proofing any witnesses who support the client’s account. Ultimately if the client is able to provide an account which is consistent with his or her innocence and which stands up to robust examination it is generally advisable to give that account in interview. This can have the dual impact of nullifying any adverse inference that might be drawn at trial as well as providing a basis for the investigator to consider whether there is in fact sufficient evidence to charge. At the very least it will impose an obligation upon them to seek to verify the accuracy of the client’s account.
Equally there will be occasions where the client wishes to make full and frank admissions to the allegations against them. They should always be advised that they will get the maximum credit on sentence if they make admissions at the earliest possible opportunity.
Where the legal adviser is unsure that they have received full disclosure from the investigator they should consider the alternatives of remaining silent or making a prepared statement.
As previously stated it is axiomatic that where there is little or no pre-interview disclosure it is generally more difficult to draw an adverse inference from silence. However, the legal adviser should not simply take the view that the absence of any disclosure automatically justifies such advice. The suspect must still be advised that an adverse inference can still be drawn from a failure to answer questions. The basis for the advice given must be fully documented.
The following have been held to be examples of a situation where an adverse inference can not be drawn:
– the investigating officer/custody officer has formed the view that the suspect should be charged with a criminal offence questioning should cease at this point
– the case is so complex and /or old as to make it impossible to make a sensible immediate response
– the facts in question were unknown to the suspect at the time of the interview
– legal advice was denied to the suspect
– the suspect is eventually tried for a different offence from that for which he was cautioned and/or interviewed
– a bare admission of facts in the prosecution case or a mere suggestion or hypothesis are not facts relied on by the defence and thus can not be the basis for an adverse inference.
In many cases the client will at trial seek to fall back on the legal advice from his solicitor as a justification for remaining silent. In R v Beckles (2005) 1 WLR 2829, the Court of Appeal set down a two stage test for juries when considering whether an adverse inference may be drawn in such circumstances:
1. Did the defendant genuinely rely on the advice and believe that he was entitled to follow it?
2. Was it reasonable in all the circumstances for the client to rely on the advice? It is not reasonable for example for a defendant to argue that he relied on the advice because he did not have a reasonable explanation and it suited his purposes to remain silent. Equally reasonableness does not depend on whether the advice was legally correct or in line with the Law Society Guidance, see R v Argent above.
It should be noted that if the defendant gives evidence at trial as to the reasons why he followed legal advice to remain silent it could amount to a waiver of privilege and result in the solicitor being called to give evidence. Hence the importance of fully documenting the reasons why such advice was given.
As a means of nullifying an adverse inference especially when dealing with complex allegations of some age it is common practice for legal advisers to prepare a statement which refutes the allegations made against their client. Thereafter the client makes no comment.
It is important to emphasize that no adverse inference can be drawn in such instances from the fact that the defendant made no comment after making a prepared statement. Equally if he adopted the content of the statement at trial no adverse inference can flow. Although it should be borne in mind that prepared statements will most likely be ruled as self-serving and inadmissible as part of the defence case, see R v Pearce 69 Cr App 365 CA.
However, an adverse inference can be drawn if at trial the defendant contradicts the prepared statement or mentions a fact which he might reasonably have been expected to include in the statement. In such circumstances the prepared statement can be put to the defendant as a previous inconsistent statement in cross-examination.
The content and structure of such statements is of necessity driven by the nature and extent of the disclosure provided by the investigator. It might be described as a “quasi-pleading” which seeks to meet the allegations and set out the defence relied on by the client. The degree of detail required will in most cases be triggered by the detail supplied by the investigator of the alleged offences. Specific assertions of fact which contradict the investigator’s allegations should be robustly tested and, where possible, supporting evidence should be supplied. Again the statement can serve the dual purpose of neutralizing any adverse inference that might be drawn at trial as well as providing the investigator with alternative lines of enquiry which might ultimately result in the investigation being terminated.
In complex fraud investigations where there is a voluminous amount of documentary evidence often covering a significant time frame which may run to a number of years the use of prepared statements in interview has become increasingly routine.
Summary of Key Points
– It is for the investigator to prove their case by the provision of admissible evidence. In the absence of such evidence no adverse inference can be drawn from the defendant’s silence in interview
– The less disclosure received from the investigator the more justifiable it will be to make no comment in interview and the less likely that an adverse inference will be drawn
– Where the investigator provides sufficient disclosure of a case to answer consideration should be given to the options of answering questions in full or making a prepared statement
– If the decision is made to answer questions in full the legal adviser should robustly test the account being given and seek supporting evidence where available
– If a prepared statement is to be provided the legal adviser should ensure that it comprehensively answers the allegations being made and in appropriate cases is supported by available evidence.