Exercising your right to silence: what does this mean for your defence?

The judgment of the Court of Appeal in R v Harewood and Rehman [2021] EWCA Crim 1936 concerns s34 CJPOA 1994. The relevant wording of s.34 permits an adverse inference by a jury to be drawn if “on being questioned under caution” the defendant fails to mention a fact relied on in his defence and is “a fact which, in the circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned.” It is an important judgment because it widens the circumstances when a judge can direct a jury that it can draw such an inference when an accused has exercised their right to silence in an interview under caution (IUC).

The two appellants were arrested on suspicion of murder. In the usual way the police prior to their respective IUC’s had provided to their solicitors pre interview disclosure. The appellants reacted by submitting “pre prepared” statements and remaining silent during their ensuing questioning. In his statement, H asserted that he had acted in self-defence. R contended that he had no memory of the incident because he had been beaten unconscious. At their trial both H and R testified in their defences. Whilst neither of their accounts contradicted their antecedent prepared statements they mentioned and relied upon a plethora of details for the first time. During their cross-examinations the prosecutor identified six contentions or aspects of their testimonies that were novel, points that were as conceded by the defence. It was then suggested to them that this sextet was all lies. This of course was denied.

How silence in an interview under caution was used by the prosecutor

What was significant about these cross-examinations was that the prosecutor, whilst making this suggestion, did not adduce any passage from the interview transcripts where he contended there was an obvious opportunity to mention any of those six contentions. The line of attack eschewed citation and reliance on them. Its aim was to establish simply that based on the pre interview disclosure and what the accused had testified to, it was obvious that they could easily and reasonably have mentioned those contentions during their respective interviews.

At the close of the evidence the prosecutor asked the Judge to permit the jury to draw an adverse inference in relation to the sextet; that as none was mentioned at interview, the jury could decide for themselves whether they were recent fabrications. The defence opposed this application. It submitted that such an inference only becomes permissible if it has been proven by the prosecution that in the circumstances appertaining to these interview’s that it was reasonable for the accused to have mentioned the sextet. Here, no probative evidence had been adduced to show that a relevant question had been posed. There was nothing about how matters were put or represented to either accused during their questioning. Secondly, the fact that the interviews had each lasted about 90 minutes was not any basis for inferring that they had had an ample opportunity to mention any of the sextet or that it would have become clear to them that they were important things to mention. As a consequence of the style of “broad brush” cross examination, there was an evidential void which precluded the jury from considering whether the accused’s silence was unreasonable.

The Judge however ruled in favour of the prosecution. She held that the prosecution’s cross examination was sufficient to establish either that questions which would have elicited answers concerning the sextet must have been asked, or that had they opted to answer questions, whatever they were, the accused would have mentioned the sextet because it was central to the core interview disclosure to what the police were then investigating. Thus, the jury should be permitted to consider whether or not to draw an adverse inference from their facts in interview which they later relied upon at trial

Both accused were convicted, and their main ground of appeal was that the Judge was wrong to have allowed the jury an opportunity to draw the inference.

Why the appeal under section34 was dismissed by the judge

The Court dismissed both appeals. The fact that the transcripts of the interviews had not been adduced did not vitiate the drawing of a s34 inference because “there is no requirement that the unmentioned fact must be one about which the accused has specifically been asked a question. The language of the statute does not impose such a requirement and the test is simply whether in the face of the questioning the fact is one which the defendant could reasonably have been expected to mention.”

The Court then held that it would be reasonable for a jury to draw an adverse inference based on factors that might have nothing to do with what the defendant had been asked about during their interview; “the circumstances which the jury are to take into account in determining whether the accused could reasonably have been expected to mention the fact in question will include what it knows about the length of the questioning, and the relative significance or importance of the fact in question to the matters about which the accused is being interviewed; and its relative significance or importance to any answers he does give in interview or to the contents of any prepared statement which he has given…If the facts which the accused failed to mention are central to this account at trial, the jury may more readily conclude that he could reasonably be expected to have mentioned them in interview, whether or not they were the subject of particular questioning.”

Why the accused decision to not fully answer questions can be held against them

This authority contains a number of important and from a defence perspective, disturbing, albeit overlapping implications as follows;

1. It increases the pressure on a suspect to answer questions during their IUC. Correspondingly it eases the pressure on the investigator to disclose the reasons for their suspicions both before and during the interview. For example, the investigator’s pre interview disclosure is believed to be misleadingly incomplete is probably not a justification for the suspect’s silence or failure to mention a fact they later seek to rely on at trial, if they had an exculpatory explanation to give or a fact to mention. Issues which used to amount to a reasonable excuse such as whether at the time of the interview there did not appear to be a case to answer, are relegated.
2. As a prosecutor, whilst cross-examining an accused about the fact that they did not answer questions during their IUC, is no longer required to adduce evidence of what questions were actually asked or what words were actually used. It increases the danger of deeming silence of itself to be sufficient for the drawing of an adverse inference. It makes it more incumbent on the defence to explain why in the then circumstances prevailing at the time of the interview, a refusal to co-operate was reasonable.
3. A pre prepared statement as an alternative to orally answering questions now seems an even less attractive option. One which is merely or virtually a bare denial will serve no useful purpose and will be used to highlight the obduracy of the client. One which contains a lot more information is perilous because if it transpires when the client testifies that it was significantly incomplete then as the Court emphasises, the unmentioned facts in such a statement will require a justification in order to avoid an adverse inference.

This case underlines the importance of giving the right advice at the pre interview stage. Whilst it does not upset the law that an accused cannot be convicted solely on the basis of an s34 adverse inference, it facilitates an invitation by the prosecution to a jury to hold the accused’s decision not to fully answer questions against them.