Law Of Silence In The American Criminal Justice System

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In this essay, I will be analysing the decision in R v Howell 2005 and critically evaluating the consistency and objectivity of section 34 of the Criminal Justice and Public Order Act 1994. The law on silence is unusual, there are two separate bodies of law, common law and statue law which is the Criminal Justice and Public Order Act 1994. The unusual aspect of this area of law is only one will apply to defendants trial it is up to the judge to decide which one is applied.

The general rule in common law is silence on questioning cannot be used against defendant on trial. This was confirmed in R v Leckey 1994 and in R v Henry 1990, it went on further the cover selective silence. As one the legal principles in criminal law is innocent before proven guilty, as everyone has a right not to incriminate their selves and the burden is on the state to prove guilt without defendants help. When the Criminal Justice Act and Public Order Act 1994 come into force radically reformed law on silence leaving common law untouched. The Act grants defendants to remain silence however allowing silence to be taken into account in four different categories. The category we will focus on is silence prior to trial, section 34 ‘effect of accused’s failure to mention facts when question or charged’. Section 34 has been very ambiguous and problematic for the courts because there is a whole range of case law.

In R v B 2003, Lord Justice referred to section 34 as a “notorious minefield”, meaning this section is very complicated with problems. It can easily be argued section 34 arises fair trial issues, the UK has been found in violation of Article 6 of the European Convection on Human Rights, Right to a fair trial. The whole objective of section 34 was acquired to discourage ‘ambush defences’ where defence does not inform prosecution what the defence is. This would help put pressure on suspects to give information early so defence in trials could not ‘ambush’ prosecution. However, Criminal Procedure and Investigations Act 1996 placed an obligation on defence to disclose to prosecution their main platform of defence in advance of trial. So it can be evaluated this undermines section 34 therefore is there any need for section 34 as there is already legislation that covers this.

Section 34 of the CJPOA 1994 permits the judge when deciding if there’s a prima facie case, and the jury or (magistrates), when determining whether D is guilty, to draw ‘such inferences as appear proper’ from D’s failure to mention ‘a fact’ during police questioning under caution.

Article 6 of the European Convention on Human Rights is right to a fair trial, in Murray (John) v UK 1996 it was stated the right to silence is ‘at the heart of the notion of fair trial’ Article 6 of ECHR, the right to silence is not an absolute right. Section 34 failure to mention something must be failure to mention something to a specific question asked by police officer also the fact the accused mentions in trial must favour the defence.

Now we will deeper into section 34 and focus on silence on legal advice. One of the major cases was R v Condron 1997 where the defendants were advised by their solicitor not to answer questions in the police interview as in his opinion they were not fit for interview even though the police doctor declared them fit. During the trial they give detailed accounts of innocence which was not mentioned at interview, their solicitor submitted to judge section 34 should not operate as he advised them in good faith. The trial judge disagreed and activated section 34 and invited jury to draw inference on silence and they were convicted. They appealed the conviction arguing that the courts should draw distinction against ‘tactical’ and ‘non-tactical’ reasons for advising silence. Court of Appeal refused to make a distinction as it would be too easy for defence lawyers to get around the law by advising defendants to be silence in good faith.

Another issue that arose was the judges direction to jury which was ‘up to you to make inferences’ the Court of Appeal described this as to vague and adequate, it was so broad it left the possibility for jury to draw inferences against the defendants even if jury thought reason for silence was because of legal advice. Court of Appeal went even further on to state it would have been ‘desirable’ for the trial judge to tell jury they could draw inferences in the following situations, “D’s silence could sensibly be attributed to the defendants having no answer or none that would stand up to questioning”. This illustrates if jury think reason for silence was for legal advice they cannot draw inferences, the wording used is ‘desirable’ which is not tight or solid ruling, Condron’s case was still refused because of strong evidence against them.

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Condron’s petitioned to European Courts of Human Rights, which lead to Condron v UK 2000 arguing conduct of trial was unfair and there was a violation to their right to a fair trial which was supported by the International Courts which found the UK in violation of Article 6. They stated the Condron direction is ‘essential’, ‘appropriate weight’ must be given to the fact defendant is advised by his lawyer to remain silent. This was confirmed in Beckles v UK 2003, Condron v UK decision is essential unless defendant unless defendant has no answer implying the jury have concluded defendant’s guilt, so it could be argued section 34 presumes guilt and is pointless and irrelevant. This shows major inconstancy with domestic law and international law, as one says ‘desirable’ and another says ‘essential’. The Condron direction was accepted in domestic law in R v Milford 2001 where Court of Appeal accepted Condron direction is not ‘desirable’ but ‘essential’.

In R v Betts and Hall 2001 Court of Appeal quashed defendants conviction because of a deficient direction by trial judge, judge told jury whether defendant in question had ‘valid or adequate reasons for silence’. The courts stated what matters is not reasonableness but genuineness of defendants silence, if jury are being asked to decide ‘valid or adequate reason for silence’ basically informing the jury if they agree with the silence making it objective which is wrong Court of Appeal wants genuineness. The principle in Betts and Hall is if jury thinks suspect remained silent on lawyers advice cannot draw inferences. However Lord Justice Kay in this case said if jury thinks suspect is hiding behind lawyers advice on silence then jury may draw inferences because suspect’s not being genuine which is backed in Condron v UK, also Kay mentions advice on silence is not an automatic pass around section 34. Many people argue decision in R v Betts and Hall 2001 makes perfect sense as it is not about judging whether that defendant’s decision was a good decision, but can jury draw inferences from silence from prosecution evidence. It can also be said it is very reasonable to listen to your lawyer, whereas you might not always be genuine. Therefore the question again must not be reasonableness but genuineness, decision in Betts and Hall fits the principle of section 34 to stop ‘ambush’ defences.

However, the R v Howell 2003 case questions inconsistency from the Condron v UK and Betts and Hall. If Howell is inconsistence with these above cases then there is a certain fair trial problem. In the Howell case defendant was told to be silent on advice from lawyer at police interview even though the defendant gave lawyer a detailed account of self-defence in private. Lawyer gave the advice because police in questioning give detailed accounts of events without no witnesses, no victim statement or their notepads, it was all based on assumption. In trial Howell give self-defence account, trial judge invited jury to make inferences from defendants silence in police interview and activated section 34. Jury did not know defendant gave self-defence account to lawyer in private at interview stage, judge went further too state Howells claim of self-defence in trial was fabricated. This lead to conviction, applied leave of appeal rejected, Criminal Case Review Commission referred the case on grounds of fair trial violation.

Court of Appeal critiqued trial judges invention of self-defence claim but then went on to dismiss Howells appeal. This illustrates inferences can be drawn even though lawyer advised silence this goes against the whole principle of Condron and Betts and Hall. Laws LJ stated in R v Howell 2003 “There must always be soundly based objective reasons for silence…”, objective means reasonable so it is no longer about genuineness. Courts says there is no soundly based objective reason for silence in Howells, they gave examples of silence such as vulnerable suspect or a forgettable suspect who needs to refer to documents to assist recollection will satisfy test. The Court of Appeal introduced new objectivity test for suspects inference to made on silence to escape section 34, genuineness is no longer enough to satisfy reasonableness is now needed.

In R v Knight 2003 challenged ruling in Howell, the courts stated there was no inconsistency between Howell and domestic law and no infringement of Article 6 of the ECHR. However the court stated if there is any inconsistency the courts prefer Howell, a side point that can be mentioned the senior judge in Knight was Lord Justice Laws the same judge in Howells therefore could be said obviously the judge might stand by his own rulings but this cannot be said as fact as judges can re-evaluate. The ruling in knight was also confirmed in R v Hoare 2004. R v Beckles 2005 indorsed ruling in Howell and Hoare reinsuring the test which is defendant’s reliance on lawyer’s advice to remain silent must be both genuine and reasonable to stop inference being drawn. In Beckles Lord Woolf CJ states, “it may still not have been reasonable for him to rely on the advice…” of the lawyer, this questions the whole concept of having a lawyer as lay person under the pressure of a police interview, surely it is ignorant to ignore your lawyers advice as they are there for the good. In R v Samuel 1998 stated by Hodgson J right to have a lawyer present is “One of the most important and fundamental rights of a citizen”.

In conclusion, the courts have complicated this area, as they have a negative view on defence lawyers which could be argued why the ruling in Howells stands, so there is no room for section 34 to be abused by defence lawyers claiming advice on silence at police interview was in good faith. The reasonable test in Howells is unfair and inadequate, the test in Betts and Hall is clearer and more adequate as it fits the legislation aim of section 34 which is to pressure suspects to speak at an early stage and prevent ‘ambush’ defences. A big problem with the Howell test is suspects have to work out if lawyers advice is adequate enough which is absurd, then what is the point in legal advice if suspects cannot rely on it.

The inferences in John Murrays case cannot be drawn if access to lawyer was refused, Government considers having a lawyer present at interview is important, so the question arises again how can listening to a lawyer’s advice on silence activate section 34 in Howells. We are now left with an objective test which is too demanding and conflicts with Article 6 of the ECHR right to a fair trial.

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