The Stephen Lawrence re-Trial, left Judge and Jury with a decision to make as to what inferences to draw from a Defendant’s maintained silence.
Prior to the Criminal Justice and Public Order Act 1994, anyone arrested was entitled as a fundamental right to maintain silence.
Following the 1994 Act, the Court was permitted to draw adverse inferences from earlier silence, when being questioned about the offence.
Adverse inference means usually that the Court can take the view that any later statement or explanation relied upon which was not immediately made at the time the same or similar questions were put, can be considered made-up/ a fabrication/ conjecture to save one’s skin, or was not an explanation which would have stood up to scrutiny at the time it was being made, without being later considered and developed as an explanation.
A Defendant’s silence is unlikely on its own, however, to lead to a conviction. Such silence can not in its own, prove guilt, see Section 38(3) of the 1994 Act. The further evidence required is evidence to establish that the Defendant has a case to answer, and must call for an explanation from that Defendant.
The Court is unlikely to draw an adverse inference where silence has been maintained by a Defendant awaiting to seek legal advice.
Adverse inferences can, however, be drawn not just from ‘no comment’ interviews. If, for example, a Defendant relies upon a different set of facts not previously relied upon or mentioned in a Defence Statement, and should have been mentioned when questioned initially, under Section 34 of the 1994 Act, an adverse inference could be drawn to the attention of the Court.
Before such an adverse inference can be made, certain conditions have to be met under Section 34:
1. An Interview has to have been made under caution;
2. The Defendant has to fail to have mentioned any fact later relied upon in hs Defence at Trial;
3. Failure to make mention occurred before the Defendant was charged;
4. The questioning had to have occurred during a line of enquiry trying to discover whether or by who the offence was committed;
5. A failure to make mention of a particular set of facts, must have been something that the Defendant could reasonably have been expected to know at the time of interview.
Under Section 34, if one were to come to a Police interview with a readily prepared statement setting out in a clear and logical way, the writer believes that the Prosecution would be hard pressed to scrutinise, or draw adverse inferences from coming prepared.
However, if the Police later ask questions arising from such a written prepared statement and the Defendant chooses not to respond, adverse inferences could then be drawn under Section 34.
David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors. He is a Certified Fraud Examiner, and a working member of the Fraud Advisory Panel. David is a visiting associate Professor of Law at Brunel University.
