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Report No. 180

The Court observed further:

"the Court of appeal had no means of ascertaining whether or not the applicants' silence played a significant role in the jury's decision to convict."

The Court observed that section 34 of the English Act as introduced in 1994 gave the discretion only to the jury and inasmuch as the Judge did not give the discretion to the jury, the conviction was liable to be set aside. The Court further observed:

"Any other conclusion would be at variance with the fundamental importance of the right to silence, a right which, as observed earlier lies at the heart of the notion of a fair procedure guaranteed by Article 6."

We have set out passages from the judgment of the European Court in Condron's case which arose out of the UK law as amended in 1994, in sufficient detail, only to show the ramifications into which the English law has been thrown after the 1994 amendments.

Let us, therefore, consider the new problems the English Courts are presently facing after the 1994 changes in the law relating to the right to silence. Presently in most cases, the accused would say, upon being questioned, that his lawyer had asked him to remain silent. Questions have arisen as to whether the lawyer has advised the accused to remain silent because the lawyer felt that the accused might not be able to withstand the hard questioning by the police or the clever or complicated questions of an able prosecutor.

Questions have also arisen as to whether the lawyer knew about the guilt of the accused and felt that the accused should stand by his constitutional right. Yet another question that has arisen is whether the lawyer of the accused can be cross-examined, as done in Condron's case to reveal the details of the advise and whether that would or would not violate the basic principle of confidentiality between a lawyer and his client.

We shall refer to some more problems faced by English Courts after the changes of 1994. For example, the present law requires the court to draw a 'proper' inference against the accused who has remained silent when questioned by the Police or by the Court. There are no guidelines as to what type of inference should be drawn in different situations or facts. Further, even after 1994, it is accepted that silence alone cannot be treated as evidence against the accused unless a prima facie case is made out first. Opinion about prima facie case can always differ.

For example, an accused may want to remain silent as he does not recognise the authority of the person questioning his innocence. Jesus might have opted to remain silent as he did not accept the authority of Pontius Pilot to question his innocence. (see Mathew 27: 11-14; Luke: 22: 2-5) (quoted by Rosemarry Pattenden on "Inference from Silence" 1995 Cr.L. Rev. p 602). An accused may have been silent if he felt that the prosecution case was weak. He may have remained silent because his lawyer had asked him to remain silent.

It is again not clear what Lord Mustill in the House of Lords or later the European Court meant in stating that a prima facie case must first be established by the prosecution before any inference is drawn from the silence of the accused (see Murray v. DPP (1993) Cr. App. Rep. 151 (H L.) and (1996) 22 EHRR 29). In the same judgment in the House of Lords, Lord Slynn used the words "clear prima facie case" and Kelley J in R v. Murphy (NICA Unrep. 2-4-93), used the words "strong prima facie case". It is again not clear whether the inference that may be drawn by the court gainst an accused should relate to the specific facts or whether it could be a general inference about the guilt of the accused. But, Lord Mustill said that section 35 could apply to one issue and may not apply to other issues.

It is not clear how this can be done in practice. In England, an accused may, in fact, rely on section 1(f)(ii) of the Criminal Evidence Act, 1898 and contend that he does not want to testify because of the risk of cross examination. What would happen to that right is not clear. For example, in R v. Barkley (NICR, Nov. 27, 1992) the accused refused to say anything because he feared that the co-accused may threaten him if he pointed out that the coaccused was the really guilty person. Could it then be said that even in these circumstances, it was a fit case, to draw an inference against the accused, because he remained silent?

Silence can always be consistent with innocence - the accused might remain silent because of shock, confusion, embarrassment, a desire to protect another person or to avoid reprisals, or in order to conceal some other improper conduct of some other person or it may be his personal trait to generally be silent or he may be having a low I.Q. or there may be a problem of language or literacy; there may be drug dependency; he may not have understood the caution administered by the police; he may not have realised that certain facts known to him would prove his innocence; or as already stated, he may have remained silent because of a bona fide advice by a lawyer.

An accused cannot be punished because of a wrong advice of a lawyer. In England it is also curious that except section 35 the other provisions, namely section 34, 36 and 37 even apply to children and those mentally ill or handicapped. What is to happen to the right to seek legal advise as permitted under section 58 of the Police and Criminal Evidence Act, 1984?

These questions have still not been answered satisfactorily. Supposing an accused, when questioned at the trial, answers "I do not know" or "it is not true", can an inference be drawn against him on the ground that the above words amounted to silence? If not, is there any difference between his verbal denial and his silence?

As already stated, initially the encroachment into the right to silence started with the Criminal Evidence (Northern Ireland) Order, 1988 during times when terrorist activities started on a big scale in Ireland. The Law Revision Committee had earlier felt in 1972 that such an encroachment was necessary in the law relating to silence, in the case of suspected terrorists, serious crimes of armed robbery and in regard to businessmen suspected of sophisticated offences of serious fraud (see 11th Report on Evidence (1972) by the Criminal Law Revision Committee (Cmnd. 4991, para 21 (v) and 30) and Report of Fraud Trials Committee 1986 (para 2.32). A law which was proposed to tackle terrorism in Ireland, came to be accepted in England in 1994 and applied to all cases of crimes where an accused would choose to remain silent.

In England, it has been lamented that the Government had brought the 1994 changes on the basis of the 11th Report of 1972 of the Criminal Law Review Committee even though two other Royal Commissions had recommended that the right to silence could not be encroached upon. (see Report of the Royal Commission on Criminal Procedure (Cmnd. 8092, 1981) paras 4.47 and 4.53 and the Report of the Royal Commission on Criminal Justice, Ch.IV, paras 20-25. (ibid, 1995 Crl. L. Rev. p. 4).

As to when a Court can say that a prima facie case has been proved and as to when a Court can say it has sufficient evidence of the accused having been advised of his right to call an attorney, these matters are capable of becoming serious issues in Indian courts. If the accused and the lawyers are also to be cross examined in India, as to what advise was given, there would be more confusion. It, therefore, appears obvious not to go by the changes of 1994 made in the English law. Otherwise, there will be more litigation, more uncertainty and more arguments for the defence and perhaps more acquittals in India.

In fact, in Condron's case, the European Court has referred to several judgments of the Court of appeal in England between 1994 and 2000 and the said judgments reveal that the English law has become more uncertain after 1994. There are also several articles written by leading jurists published in the Criminal Law Review (UK) and other journals right from 1994 referring to the adverse consequences and serious problems that have crept into English law on account of these new changes.



Report on Article 20(3) of the Constitution of India and the Right to Silence Back




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