Right To Silence in England and Wales - Adverse Inferences From Silence

Adverse Inferences From Silence

At common law, adverse inferences could be drawn from silence only in limited circumstances in which an accusation of guilt was made. It was necessary that the accused be on even terms with the person making a charge and that it was reasonable to expect the accused to answer immediately the charge put to him (although it was not clear if the rule applied where the accusation was made by or in the presence of police officers).

The Criminal Justice and Public Order Act 1994 provides statutory rules under which adverse inferences may be drawn from silence.

Adverse inferences may be drawn in certain circumstances where before or on being charged, the accused:

• fails to mention any fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention;
• fails to give evidence at trial or answer any question;
• fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested; or
• fails to account on arrest for his presence at a place.

Where inferences may be drawn from silence, the court must direct the jury as to the limits to the inferences which may properly be drawn from silence. There may be no conviction based wholly on silence. Further it is questionable whether a conviction based mainly on silence would be compatible with the European Convention on Human Rights. If there has been a breach of the PACE Codes of Practice, the evidence is more likely to be excluded under s. 78 of the Police and Criminal Evidence Act 1984. The Code envisages, amongst other things, recorded police interviews taking place at a police station, where the accused has access to legal advice and after the caution in the following terms has been given:

You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.