Report No. 180
United Kingdom (U.K.)
Initially in England, the law-makers were confronted with problems of terrorism in Northern Ireland. In order to combat the said problem, the Criminal Evidence (Northern Ireland) Order, 1988 was amended permitting inferences to be drawn from the silence of an accused where the accused had a duty to speak. Later on, similar changes were carried out in the English law by enacting sections 34 to 37 in the Criminal Justice and Public Order Act, 1994. These provisions permit 'proper inferences' to be drawn from the silence of the suspect during interrogation or of the accused at the trial. The Court can comment on the silence in its summing up to the jury. The jury can take the silence into consideration.
In a case arising from Northern Ireland, under the Criminal Evidence (Northern Ireland) Order, 1988 the matter initially came up before the House of Lords in Murray v. DPP (1993 Cr. App. Rep. 151). There, the statute enabled the Judge to taken silence into account. In N. Ireland the matters would not go before the jury, unlike the provisions in the English Act of 1994. Lord Mustill observed that though the statute in Ireland enabled 'proper inference' to be drawn in case of silence of the accused, it was first necessary that a prima facie case is made out against the accused. Only then the new provisions could be resorted to for the purpose of drawing conclusions about the guilt of the accused. The Court has to make a 'common sense approach'. He made it clear that no finding of guilt could be arrived at merely based on the silence of the accused.
On appeal, the European Court in Murray v. United Kingdom (1996) 22 EHRR 29, held that the encroachments into the right to silence made in Ireland by the Irish law of 1988 did not violate the right to a fair trial nor the presumption of innocence mentioned in Article 6 of the European Convention. It was further held that the trial Judge could not draw an adverse inference merely on account of the silence of the accused and that the guilt of the accused must be prima-facie established by the prosecution. An additional condition was laid down that the new provisions could not be resorted to unless it was proved that the accused was given an opportunity to call for an attorney at the time when he was interrogated by the Police or at the time of trial. This was a mandatory rule.
After the judgment above referred to, which arose from the Irish law, the English Parliament, which had in the meantime introduced similar provisions in the Criminal Justice and Public Order Act, 1994, as applicable to England and Wales, amended the said Act by the Youth Justice and Criminal Evidence Act, 1999 by introducing provisions requiring the suspect or accused to be informed of his right to call an attorney. Sub-section 2(A) was introduced in 1999 in Section 34 and that section deals with pre-trial silence. Sub-section (2A) provides an opportunity to call a lawyer and reads as follows:
"Section 34(2A). Where the accused was at an authorized place of detention at the time of the failure, sub-sections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in sub-section (1) above."
A similar provision was introduced in Section 36 by way of Sub-section (4A). Section 36 deals with failure of the accused to account for objects, substances, and marks. Sub-section (3A) was introduced in Section 35. That section deals with right to silence at the trial. Similarly in Section 37 which deals with the presence of the accused at the scene of offence, sub-sec.(3A) was introduced. All these new Sub-sections require that the accused must be informed that he has a right to the presence of an attorney whenever he is questioned.
If he had not been so informed, the fact that he remained silent, could not be taken into consideration. If therefore, no presumption can be raised on account of the silence of the accused unless a prima-facie case of guilt has been established by the prosecution, it is difficult to see, and several jurists have also stated similarly, that there is no extra advantage in permitting the judge to rely on the silence of the accused.
Further, while the amendment to the English law has made a provision for raising "proper inferences", the European Court in Murray v. UK has reduced its rigour by limiting the use of the silence for the limited purpose of an assurance or corroboration and that too, provided the accused was informed of his right to have a lawyer by his side at the time of the questioning. But, according to the House of Lords and the European Court, silence of the accused enters into the decision-making process before arriving at a finding that the accused is guilty beyond reasonable doubt.
One may ask the question as to in how many cases Police Officers in India are strictly following the rules laid down by the Supreme Court in D.K.Basu's case? In a pending public interest litigation in the Supreme Court, it was reported by the amicus very recently that, according to the information received from various States, it was clear that D.K.Basu guidelines are not being followed in most of the States. Can anybody assure that in India, the Police invariably would inform a person in detention that he has a right to call a lawyer at the time of his interrogation?
Even if we introduce a rule to that effect and even if the Police record in their diary that such an opportunity was given, one cannot say how much credence can be given to such a noting in India. Even in England, it was stated that, if the signature of the accused was not obtained in the diary after recording that he was informed of his right to call an attorney, that would amount to a breach of section 78 of the Police and Criminal Evidence Act, 1984. One other thing to be noted is that Article 6(1) of the European Convention only speaks of a right to a fair trial and Article 6(2) to a presumption of innocence.
There is no reference to a right against self incrimination, as contained in Article 20(3) of our Constitution or as contained in the Fifth Amendment of the American Constitution. In Murray v. UK, the European Court no doubt observed that if the silence of the accused was taken into account, after a prima facie case was established and the accused was informed of his right to call for an attorney, the provision as to fair trial in Article 6(1) would not be violated.
We shall next refer to the recent decision of the European Court in Condron v. The United Kingdom rendered on 2nd May, 2000. The case directly arose under the English Act of 1994. The Court relied upon the judgment in Murray's case already referred to and stated that the right to silence was not absolute but at the same time a prima facie case must be made out and the safeguards mentioned in that judgment namely, giving an opportunity to the accused or suspect, to call for a lawyer, must be followed. Condron's case was one where the accused persons exercised their right to call for a lawyer and as the lawyer advised them to remain silent during interrogation by the police, they remained silent and when cross-examined at the trial (a procedure which does not obtain in India), they said that they remained silent because of the advice of the lawyer. The Court then stated as follows:
"the Court would observe at this juncture that the applicants were subjected to cross examination on the content of their solicitor's advice can not be said to raise an issue of fairness under Article 6 of the Convention. They were under no compulsion to disclose the advice given, other than the indirect compulsion to avoid the reason for their silence remaining at the level of a mere explanation. The applicants chose to make the content of their solicitor's advice a live issue as part of their defence. For that reason, they cannot complain that the scheme of section 34 of the 1994 Act is such as to override the confidentiality of their discussions with their solicitor".
The above observations of the European Court lead to this. If the accused remains silent, they run the risk of an adverse inference. But if they seek legal advice and state that their lawyer advised them to remain silent, the Court would then say that there was a fair trial and that they had waived their privilege of confidentiality. They would be prejudiced either way. We may further notice that in Condron's case, the solicitor was also examined at the trial as to the advice he had given. This is clear from what the Court observed later:
"They (accused) testified that they acted on the strength of the advice of their solicitor who had grave doubts about their fitness to cope with police questioning their solicitor confirmed this in his testimony in the voir dire proceedings then admittedly the trial Judge drew the jury's attention to this explanation. However he did so in terms which left the jury at liberty to draw an adverse inference notwithstanding that it may have been satisfied as to the plausibility of the explanation.
It is to be observed that the Court of Appeal found in terms of the trial Judge's direction deficient in this respect...In the Court's opinion, as a matter of fairness, the jury should have been directed that it could only draw an adverse inference if satisfied that the applicant's silence at the police interview could only sensibly be attributed to their having no answer or none that would stand up to cross examination....
As the applicants have pointed out, it is impossible to ascertain what weight, if any, was given to the applicant's silence (by the jury). In its John Murray judgment, the Court noted that the trier of fact in that case was an experienced Judge who was obliged to explain the reasons for his decision to draw inferences and the weight attached to them. Moreover, the exercise of the Judges discretion to do so was subject to review by the appellate courts. However, these safeguards were absent in this case. It was even more compelling to ensure that the jury was properly advised on how to address the issue of the applicants' silence.
It is true that the Judge was under no obligation to leave the jury with the option of drawing an adverse inference from their silence, and left with the option, the jury had option to do so or not to do so. It is equally true that the burden of proof lay with the prosecution to prove the applicants' guilt beyond reasonable doubt and that the jury was informed that the applicants' silence could not "on its own prove guilt"...However, notwithstanding the presence of these safeguards the Court considers that the Judge's omission to restrict the jury's discretion must be seen as incompatible with the exercise of their right to silence at the police station."