Silence

Question 1

What was the defendant’s right to silence at common law?

Answer 1

The defendant had a complete right to remain silent before and at trial.

Question 2

What was the judge’s role regarding silence at common law?

Answer 2

The judge had to prevent the jury from speculating about why the defendant remained silent.

Question 3

Which case illustrates the common law right to silence?

Answer 3

Hall v R [1971] 1 WLR 298.

Question 4

Why did dissatisfaction with the common law right to silence develop?

Answer 4

As there was a fear of abuse

Question 5

What prompted reform of the right to silence in 1993?

Answer 5

Rise in crime and judicial uncertainty

Question 6

What did the Law Commission recommend?

Answer 6

That the right to silence be retained in its common law form.

Question 7

Which Act reformed the right to silence despite the Law Commission’s recommendation?

Answer 7

Criminal Justice and Public Order Act 1994 (CJPOA).

Question 8

Which sections of the CJPOA 1994 are relevant to silence?

Answer 8

Sections 34–37.

Question 9

Why must judges now give careful jury directions on silence?

Answer 9

Because adverse inferences may be drawn from silence.

Question 10

What has been a major criticism of the CJPOA 1994?

Answer 10

Increased complexity, lengthy jury directions, and increased case law.

Question 11

What debate exists among academics about the CJPOA reforms?

Answer 11

Whether evidential benefits outweigh cost, complexity, and judicial time.

Question 12

What does s.34 CJPOA 1994 concern?

Answer 12

Silence when questioned by police.

Question 13

When may adverse inferences be drawn under s.34?

Answer 13

When questioned before charge after caution

When charged with an offence

Question 14

What kind of facts fall under s.34?

Answer 14

Facts the accused could reasonably be expected to mention at the time.

Question 15

What is the link between s.34 and PACE?

Answer 15

Police caution under PACE Code C para 10.4

Question 16

Police caution under PACE Code C para 10.4

Answer 16

The accused’s failure to give evidence at trial.

Question 17

What does s.35(3) allow the jury to do?

Answer 17

Draw such inferences as appear proper from silence at trial.

Question 18

Does s.35 make the accused compellable?

Answer 18

No – the accused cannot be forced to give evidence (s.35(4)).

Question 19

What is “good cause” for refusing to answer under s.35(5)?

Answer 19

Statutory entitlement, privilege, or court discretion.

Question 20

What did R v Cowan [1996] decide about adverse inferences?

Answer 20

There is no mandatory requirement for a jury to draw adverse inferences.

Question 21

What key guidance must judges give following R v Cowan (1996)?

Answer 21

Silence alone cannot prove guilt.

Question 22

What must the jury be told about the right to silence?

Answer 22

It is the defendant’s choice whether to give evidence.

Question 23

When may adverse inferences be drawn from silence at trial?

Answer 23

If silence can only sensibly be attributed to having no explanation or none that would withstand cross-examination.

Question 24

What does s.36 CJPOA 1994 address?

Answer 24

Failure to account for objects, substances, or marks on arrest.

Question 25

What must police reasonably believe under s.36?

Answer 25

That the object or mark may be attributable to participation in an offence.

Question 26

What warning must be given for s.36 to apply?

Answer 26

The accused must be told in ordinary language of the consequences of silence.

Question 27

What solicitor safeguard exists under s.36?

Answer 27

Opportunity to consult a solicitor at an authorised place of detention.

Question 28

What does s.37 CJPOA 1994 concern?

Answer 28

Failure to account for presence at a place at or about the time of the offence.

Question 29

What safeguards apply under s.37?

Answer 29

Warning in ordinary language and access to legal advice.

Question 30

Does relying on legal advice automatically prevent adverse inferences?

Answer 30

No.

Question 31

What must judges direct when silence follows legal advice?

Answer 31

Whether silence was due to advice or because the defendant had no satisfactory explanation.

Question 32

What did Parkes v R [1976] establish?

Answer 32

Silence in the face of accusation may amount to a confession when parties are on equal terms.

Question 33

What did R v Collins [2004] address?

Answer 33

Failure to contradict an important lie.

Question 34

What did R v Hoare [2005] clarify?

Answer 34

Silence may justify adverse inferences even if legal advice was genuinely given.

Question 35

What did R v Knight [2004] decide?

Answer 35

No adverse inference where a pre-trial statement was comprehensive and no new facts were raised.

Question 36

Does Article 6 ECHR explicitly protect the right to silence?

Answer 36

No.

Question 37

What did Murray v UK (1996) confirm?

Answer 37

Adverse inferences do not automatically breach Article 6.

Question 38

What was decided in Condron v UK (2001)?

Answer 38

s.34 does not breach Article 6, but jury directions must address legal advice properly.

Question 39

What did Beckles v UK [2002] confirm?

Answer 39

CJPOA provisions are compatible with Article 6.

Question 40

What did Argent v R [1997] define a “fact” under s.34 as?

Answer 40

A fact the accused could reasonably be expected to mention in the circumstances.

Question 41

What must the jury consider under Argent?

Answer 41

The defendant’s personal characteristics and circumstances.

Question 42

What is the modern position on the right to silence?

Answer 42

Defendants cannot be compelled to speak, but silence may carry adverse evidential consequences.

Question 43

What counts as a “good reason” for silence?

Answer 43

Genuine and reasonably held reasons (e.g. legal advice, illness, memory loss).

Question 44

What must the jury decide when silence is explained at trial?

Answer 44

Whether the explanation is plausible and deserves weight.