Law of Evidence: The Criminal Justice and Public Order Act 1994 - Case Study Example

EVIDENCE This question requires a discussion of the 34 of the Criminal Justice and Public Order Act 1994 which essentially provides that the court inits determination of whether, the defendant is guilty of the offence charged, whether there is case to answer or whether the defendant should be committed to the Crown Court, may draw such inferences as appear proper from evidence of silence in certain circumstances. According to the Criminal Justice and Public Order Act 1994 (CJPOA), s.34 (4), these circumstances are that upon questioning under caution by the police or relevant person in charge ,or after being charged or informed of the charge the defendant has failed to mention any fact which he later relies upon in defence which he should have reasonably mentioned at that time. We have been told that in the question that the judge has already given a direction that, pursuant to section 34 of the criminal justice and Public Order Act 1994, a proper inference could be drawn from Billy’s silence at interview. If this is allowed to continue without being challenged in appeal the effect of it will be that the court will allowed to infer “what is proper” from Billy’s silence at the court where he has failed to mention his epileptic state and the factum of the argument he had with the deceased prior to the death.However at this point we have not been told whether he was placed under a caution or not. This is important because Section 34 only applies where an interview under caution takes place, so the court will not be able to draw an inference if for example Billy had declined an invitation to attend an interview under caution. In the case of R v Argent1,the Court of Appeal was of the opinion that six criteria had to be met before such a direction could be given.In Billy’s case that would be if there had been proceedings against him for an offence(which is the allegation of murder here), Billy had failed to answer questions before he was charged. He failed to answer the questions during questioning The nature of the questions directed at Billy were aimed at discovering whether or by who the alleged offence had been committed, These questions were related to the factum relied on by Billy(pertaining to epilepsy) which he is now basing his defence. He should have reasonably been mentioning all these facts at the interview. According to the case of R v Milford2,the phrase "in the circumstances" will be interpreted to take into account the time of the interview and the mental and physical state of Billy. This alone could be a basis of appeal as Billy can base his silence on his epileptic state. However the facts point out that he remained quiet based on his solicitors advice. A substantial part of the discussion is thus devoted to this fact and whether the court will take silence based upon the Solicitor’s advice into account. It was also noted in the case of R v Milford 3 “fact” will be denoted its literal meaning based on any premises and explanations that the Billy could give for his involvement in the allegation of murder which could convict or absolve or mitigate his liability. In this regard it is worth noting that the recent case law does not support his grounds of appeal.In the case of R. v Lowe (Paul) 4the appellant appealed by way of reference by the Criminal Cases Review Commission under the Criminal Appeal Act 1995 s.9 against the dismissal of his appeal5 against conviction it has held that the judge’s direction to the jury in relation to the application of the Criminal Justice and Public Order Act 1994 s.34 could not be appealed despite the fact that the judge had wrongly summed up to the jury that the defendant was under no obligation to answer any questions and that he had a right to silence, and the fact that he appeared to have been indicating to the jury that silence in interview should allow the jury to draw adverse inferences from the silence. It will have to be seen in Billy’s case then that the only way out for this appeal ,basing my advice on the ratio of Argent (Brian)6 that if the judge directed a jury in relation to s.34 of the 1994 Act there is a ground of appeal if care was not taken to ensure that the jury concentrated on the wording of the section and that they were only entitled to draw an adverse inference from facts that were not mentioned in police interview, but were relied upon at trial.A similar view has been taken in R. v McGarry (Patrick John) 7, R. v Daly (Andrew)8 and Condron v United Kingdom9. But since Billy is raising this issue of epilepsy and the argument he had with the deceased prior to his death at the trial there is a chance that he will be unable to do so unless the judge had failed to 10direct the jury that Billy had the right to remain silent. Things may look better for Billy if we look at CJPOA 1994, s.38(3) which means that the he may not be made liable based solely on this inference and just because the direction has been given the need to collect sufficient evidence is not absolved and that the courts powers to exclude this evidence as a matter of law or discretion remain unchanged. Also under CJPOA 1994, s.38(6) nothing in section 34 ousts the operation of any statutory provision which will subsequently render his answer or lack thereof inadmissible. Now coming to the factum of whether Billy would have any grounds of appeal it is worth noting that he would like have his epileptic state taken into account basing his silence on his solicitor’s advice at the interview.11 In the case of Roble12, the court perhaps rightly commented that “there is enough in section 34, and section 35 [of the Criminal Justice and Public Order Act 1994] … to keep the Court of Appeal in business for the foreseeable future”. This is true to a large extent because there has been considerable litigation based on matters surrounding the suspect who declines to answer some or all questions in interview after receiving legal advice to that effect. This is particularly so after the introduction of the Human Rights Act 1998 which incorporates the right to fair trial of the suspect (Art 6) and has strengthened his position against the possibility of the drawing of adverse inferences in respect of his failure to mention at interview a fact which he later relies on in his defence. It should be noted that on a technical basis Section 34 refers to facts “which in the circumstances existing at the time the accused could reasonably have been expected to mention …” Basically the question that has arisen in case law has been whether legal advice can provide a good enough reason for not mentioning such a fact. Judicial reaction has shown that the mere giving of legal advice cannot preclude the possibility of adverse inferences. This view was taken in a plethora of cases and Stuart-Smith L.J. in Condron and Condron13, recognised that s.34 could defeat the purpose of s.34 by making it a tactic in contestable cases to rely on the factum of advice to remain silent, armed with the knowledge that no sanction for such silence could follow. Therefore in deciding his basis for the appeal the court will take into account the nature of the suspects reliance on the advice to remain silent.14 Billy may be able to argue that he genuinely relied upon legal advice to remain silent to prevent the drawing of adverse inferences. Where this view is has been supported by Betts and Hall15 However this view has been rejected in Howell16.So the overall position right now is that adverse inferences are still a possibility even where a suspect had relied on legal advice to remain silent. Academic opinion has argued whether the real question can be formulated thus that whether the reliance on the advice is authentic rather than specious. This would filter out any suspect who uses the advice of his solicitor as a convenient shield behind which to hide his actual motivation for not mentioning a fact should derive no benefit from that advice in terms of avoiding adverse inferences. The debate has basically followed the premise of “genuineness” and “reasonableness” as per the suggestion of Laws L.J. in the Howell case :“We do not consider … that once it is shown that the advice (of whatever quality) has genuinely been relied on as the reason for the suspects remaining silent, adverse comment is thereby disallowed. The premise of such a position is that in such circumstances it is in principle not reasonable to expect the suspect to mention the facts in question. We do not believe that is so. What is reasonable depends on all the circumstances …” There have been calls for reform to the JSB guidelines based on the argument for resisting a direction/formulation which is too complicated and runs the danger of causing the jurys attention to be diverted from the real essence of the statutory test which is in effect whether the suspect has failed to mention a fact that he could reasonably have been expected to mention and whether the only logical explanation for that failure is that the suspect has no answer to give at all.17 Cases like Argent 18, suggest that the jury has to see while utilizing their “ collective commonsense, experience and understanding of human nature” whether such a direction has been given . Therefore Billy is advised that based on the Hoare and Pierce/Beckles interpretative issue basing his appeal on his silence because of Legal advice will depend to a large extent on his mental state at the time of the questioning and also the extent of his genuineness in heading to the advice of his solicitor . It is worth noting that he has brought up the factum of his epilepsy and his argument with the deceased only at the trial when it can be arguably said that he could have easily done this at the trial.Ofcourse there will be other considerations pertaining to his “mental state” at the time of the trial like his fatigue or post epilepsy attack position. Billy is advised that he should rely on his mental and physical position (as recorded by a medical checkup) as soon as practicable after arrest.If he can prove that his medical position was such that he was unable to respond to any questioning at the time of the interview he has a better chance of having his appeal heard.Last but not the least there is a significant information gap here. There has been no mention of the fact whether he was placed under caution and made aware of the implications or the lack thereof of his silence at the interview. Therefore I will reserve my comment on this matter before further revelations are made pertaining to this gap. All in all the chances of Billy being able to get a right to appeal are narrow and based on the genuineness of his epileptic state and the reliance on his solicitors advice. References 1. Archbold Criminal Pleading Evidence and Practice (Sweet & Maxwell, London, 2004. 2. E. Cape, “Sidelining Defence Lawyers: Police Station Advice After Condron” (1997) 1 E. & P. 386) 3. Legal professional privilege - Criminal Justice and Public Order Act 1994 s.34 - evidence as to reasons for solicitors advice to make no comment in interview( Arch. News 2006, 9, 2 –Westlaw) 4. Self-incrimination and the European Court of Human Rights: Procedural issues in the enforcement of the right to silence, E.H.R.L.R. 2007, 5, 514-533 5. Remedies for violations of Convention rights under the Human Rights Act, E.H.R.L.R. 1998, 6, 691-711 6. Silence: Lord Taylors legacy,.: E. & P. 1998, 2(3), 141-165 7. Ashworth - “Excluding Evidence as Protecting Rights”[1977] Crim LR 732 8. Ormerod and Birch-The Evolution of the Discretionary Exclusion of Evidence-[2004] Crim LR 767 9. Article 6 and the Fairness of Trials-Andrew Ashworth [1999] Crim LR 261. 10. David Ormerod: ECHR and the exclusion of evidence: trial remedies for Article 8 breaches? [2003] Criminal Law Review 6 11. Rethinking the privilege against self-incrimination, O.J.L.S. 2007, 27(2), 209-232 12. Evidence law in England and Wales: the impact of the Human Rights Act 1998,.: E. & P. 2002/03, 7(1), 31-61 13. The Law Lords and human rights: the experience of the Privy Council in interpreting Bills of Rights, E.H.R.L.R. 2000, 2, 147-180 14. Hansard invitations and confessions in the criminal trial, E. & P. 2000, 4(3), 147-176   15. Self-incrimination and the European Court of Human Rights: procedural issues in the enforcement of the right to silence: E.H.R.L.R. 2007, 5, 514-533 16. .Truth, transition, and the Inquiries Act 2005Citation: E.H.R.L.R. 2007, 4, 404-426 E.I.P.R. 2007, 29(4), N68-70 17. 1312.Privilege against self-incrimination: European Court of Human Rights (Case Comment) E. & P. 2007, 11(4), 333-335 18. .Silence and solicitors: lessons learned from England and Wales?I.C.L.J. 2007, 17(2), 2-7 19. Silence at interview: adequacy of directions. Crim. L. 2007, 71(5), 392-394 20. .Criminal Justice and Public Order Act 1994, s.34: silence in reliance on legal advice - waiver of legal professional privilege: J. Crim. L. 2007, 71(2), 114-116 Read More