The Right to Silence

The accused has a right to silence in a criminal trial, however the Criminal Justice and Public Order Act 1994 stipulates that adverse inferences may be drawn from this silence.

At common law, an accused's failure to speak in the face of accusations, or failure to appear as a witness, could not give rise to any adverse inferences by the courts, except where the accused had been cautioned, or where an accuser had been on even terms with the accused (e.g., a victim of the crime, but not a policeman etc.) However, this position was altered following the Criminal Justice and Public Order Act 1994.

Section 34 of the Act allows an adverse inference to be drawn by the court following an accused's failure to mention facts when questioned before the trial and after being charged, whilst s.35 deals with an accused's silence in court.

Section 34 covers silence as regards a fact that are later relied upon by the accused in relation to his defence. There are several requirements in order for this to apply however. The accused must not have mentioned the fact when he was questioned under caution or charged, and must have been in an authorised place of detention when he failed to mention the relevant fact. Furthermore the accused must not have been denied the right to a solicitor, and the fact must be one that the accused could be reasonably be said to be expected to mention in the circumstances existing at the time.

Under the case of R v Argent all the relevant personal characteristics of the accused will be taken into account, as well as the legal advice that he received. Under the case of R v Randall the inference that can be drawn is that the facts has been fabricated after the police interview or that the accused had begun to fabricate the fact at the time. The trial judge has a discretion to prevent the drawing of such inferences however under section 38(6), for example if the arrest was in breach of the provisions of PACE.

The fact that the accused acted on the instructions of his solicitor to remain silent will not necessarily mean that the failure to mention the fact would be reasonable; the question will be whether or not it was reasonable to rely on the advice as per the case of R v Argent.

Under the CJPA section 38(3) such silence cannot be the sole basis for a conviction. In addition the trail judge should direct the jury that not only are the requirements of section 34 met, but also that the accuseds silence can only sensibly be attributed to him having no answer to the charges against him, or an answer that would withstand questioning or investigation.

Sections 36 and 37 of the CJPOA as amended by the Youth Justice and Criminal Evidence Act 1999 cover silence in response to a request to account for objects, substances, marks or presence at particular location.

Section 36 allows inferences to be drawn at trial for substances, marks, or objects if a number of circumstances exist. These include that the accused must have been under arrest, the object substance or mark must have been found at on the place of the accuseds arrest either in his possession or on his person clothing or footwear, and that he failed to account for them in an authorised place off detention, and had not been denied the right to a solicitor. Section 37 sets out the same principles as regards being found at the scene of a crime.

Commensurate with Section 34 there can be no conviction based on theses inferences alone however.

Finally section 35 covers the drawing of inferences from the accuseds silence at trial providing that the accuseds guilt is in issue and that his condition is not one which would prevent him for testifying, and that where the accused takes the stand but refuse to answer any questions he must not have a good cause for the refusal. The courts have recently interpreted the effect of s.35 and have outlined a model direction to the jury to be made by a judge in summing up. In R v Cowan, Gayle and Ricardi the direction was said to have to cover: the fact that the burden of proof lay with the prosecution that the accused is entitled to remain silent that the jury could not infer guilt by the accused's silence unless they took the view that the case against the accused is made out on other evidence produced at trial (i.e., the accused cannot be convicted solely by an adverse inference) and that an adverse inference may be drawn if the jury believe that the reason the accused has not testified is because he/she has no answer to the allegations that would stand up to cross-examination.

In addition, the Practice Direction (Crown Court: Evidence: Advice to Defendants) (1995) requires that the judge warns the Defendant that the point in the trial has been reached at which he may give evidence, and that if he declines to do so the jury may draw an adverse inference from this failure.


Again the judge maintains an exclusionary discretion to prevent the inferences, and under 38(3) the accused cannot be convicted solely on the basis of the inference alone. In addition the trial judge should give a direction on several factors including that the burden of proof remains on the prosecution and that there must have been a case to answerer for there to be any inference drawn from the silence.

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