Will a recent case in the Court of Appeal erode the right to silence?

When a suspect is interviewed under caution, either by the Police or another regulatory body such as the Health & Safety Executive (HSE) or the Environmental Agency (EA), they must be informed that “when asked questions you do not have to answer those questions if you do not want to” but that “anything you do say may be written down and read out in court”.

The right to remain silent protects the common law privilege against self-incrimination, allowing an individual who is interviewed under caution to better understand what they are alleged to have done before answering any questions. There are, however, limitations to this right, as stipulated by section 34 of the Criminal Justice & Public Order Act 1994 (CJPOA).

Section 34 qualifies the right to silence by introducing potential consequences should a suspect fail to mention certain facts or answer questions during an interview, or when charged with an offence.

Primarily introduced to prevent an individual from fabricating a defence – or an ‘ambush defence’ – on the basis of disclosed evidence or facts, section 34 is also designed to limit the frequency of “no comment” interviews and encourage earlier disclosure of genuine defences.

According to section 34, an individual could potentially harm their defence if they later seek to rely on something that they did not mention when questioned, because a judge can invite the jury to draw an ‘adverse inference’ from the defendant’s silence. This essentially means that silence during an interview could be used as a possible indicator that the defendant had something to hide or has not been entirely truthful.

A jury cannot draw an adverse inference from all instances of silence or “no comment”, however.

According to Lord Taylor CJ in R v Cowan: “An inference from failure cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing an inference from silence.”

Essentially, the evidence and facts disclosed by the prosecution during an interview need to be such that an individual can be reasonably expected to respond to related questioning, particularly if their response will form a key part of their defence.

R v Black is a recent case in the Court of Appeal suggesting that not all information from the prosecution need be disclosed during an interview to trigger section 34.

Ludovic Black, a former director at a company selling photovoltaic solar panels, was investigated by the Serious Fraud Office (SFO) between 2011 and 2013 and subsequently arrested in 2014 for defrauding hundreds of victims – mostly elderly, retired, and vulnerable – and netting around £17m in the process.

During his arrest, Mr Black was provided with a condensed, two-page summary of the prosecution’s case. On the advice of his solicitor, he answered “no comment” to all questions while being interviewed under caution.

He would not receive the full evidence, which totalled more than 70,000 pages, until after his second arrest for failing to answer bail in September 2017. A defence statement was served on his behalf in January 2018.

At his trial, the judge directed the jury to draw an adverse inference from Mr Black’s silence during his interview, stating: “A person who is given legal advice can choose whether to follow it or not, and he was made aware at the time of his interview that his defence might be harmed if he did not mention facts on which he later relief on [sic] in court”.

Mr Black was subsequently found guilty of conspiracy to commit fraud by false representation, contrary to section 1(2) of the Criminal Law Act 1977 and section 1(2)(a) of the Fraud Act 2006. He was sentenced to 90 months imprisonment, plus a consecutive sentence of two months for failing to surrender to the Court. He was also disqualified from being a director for ten years.

Mr Black appealed, with his defence team stating that the judge was wrong to direct the jury to draw an adverse inference from Mr Black’s silence because his solicitors had not received the more than 70,000 pages of evidence until Mr Black was brought to the Magistrate’s Court in 2017.

Mr Black also said that he “got the advice from the solicitor to go no comment”, that he had not seen a lot of material, a lot was happening in his life, and it had been a shock to be dragged out of his house so early in the morning.

Despite these arguments, the Court of Appeal upheld the judge’s ruling. Mr Black had, according to the Court, confirmed during cross-examination that he had lived through events and had been given disclosure before interview, albeit in the form of a condensed, two-page summary. The prosecution’s delay in serving the full evidence disclosure was also largely due to the fact that Mr Black had absconded prior to his second arrest in September 2017.

Although section 34 and its impact on the right to remain silent has existed since 1994, R v Black is concerning for defence practitioners, particularly those involved in large, complex investigations.

As the Police and other regulators have complete discretion in pre-interview disclosure, it is possible that the Court of Appeal’s decision could encourage them to be highly selective in the evidence they disclose to a suspect and their defence team pre-interview.

While it will require further test cases to understand the full effect of this decision, R v Black has highlighted the importance of involving a legal team as soon as possible during an investigation, so that they can help an individual to review material disclosed by the prosecution and advise whether that individual really has “no comment”.