ABSTRACT
The police were vocal opponents of the right of silence but many of the senior judiciary were instrumental in supporting its curtailment Roberts and Zuckerman (2010), both in their judgments and in a personal capacity (see Chapter 2). Their interpretation of the CJPOA provisions, much speculated upon beforehand, has developed in unanticipated ways. The CJPOA provisions operate in two ways at trial: inferences being drawn from a defendant’s failure to mention facts relied upon at trial when questioned or charged (ss34, 36 and 37); and from a failure or refusal to testify (s35). As discussed in Chapter 2, the ostensible rationales for the changes were to combat the ‘ambush defence’ (whereby the defendant could wrong-foot the prosecution by offering an exculpatory version of events for the first time at trial), and to avoid a defendant being able to refuse to testify with impunity. There was little evidence that either was causing a significant problem to the prosecution. There was some ebb and flow in the decision making after the CJPOA came into force (both the Judicial Studies Board specimen directions and the Law Society guidance for police station representatives had to be rewritten repeatedly), but the case law is now relatively settled. This chapter sketches out the overall developments in relation to silence at the police station (ss34, 36 and 37), then silence at trial (s35).1 It is generally agreed that defendants are now more likely to answer police questions (see Chapter 3), and to testify, but this has not made a noticeable difference in terms of increasing charge, plea or conviction rates. Contrary to the arguments on both sides of the right of silence debate, the legislation appears to have been evidentially decisive in very few cases and has not been identified as a direct cause of miscarriages of justice; if anything, in the early days, some otherwise apparently robust convictions were quashed due to inadequacies in the directions to jurors. From the outset, the Court
made it clear that it would not permit a ‘coach and horses’ to be driven through the provisions (Cowan 1995 at 380) and the decisions of the European Court of Human Rights (ECtHR) have had a more limited influence than many expected. Lord Bingham stated that, since the provisions ‘restrict rights recognised at common law as appropriate to protect defendants against the risk of injustice they should not be construed more widely than the statutory language requires’ (Bowden 1999:para 181). The parameters of permissible inferences have nevertheless widened significantly and have had unforeseen consequences, most significantly on legal professional privilege, as discussed in Chapter 4. Academic commentary about the legislation has questioned its evidential value and criticised the complexity of the case law (Birch 1999; Dennis 2002; Easton 2014; Leng 2001b; Owusu-Bempah 2011, 2014). Even some judges have questioned whether a more straightforward approach might be preferable (Phillips 2007), as legislation that was supposed to simplify matters has left jurors and magistrates to grapple with highly complex directions, and the evidential dangers of this ‘common sense’ reasoning are considered below. Judicial interpretation of the law has developed a presumption that defendants should cooperate fully in the investigation and trial process, and that those who do not cooperate have something to hide. It is argued that the police station interview has effectively become part of the trial process (Jackson 2001c) and the language used by the Court of Appeal suggests that judges ‘have imported to the courtroom the traditional police suspicion of defendants and their legal representatives’ (Quirk 2013:468) described in Chapter 3.
