Spiking the judge's guns when defendants are silent: part 2

In the first part of this article ([1987] Gazette, 11 November, 3233) I discussed the question of comment by the trial judge on the defendant not having given evidence and suggested a number of arguments to be incorporated into a model address by which counsel might pre-empt adverse comment.
This second part is devoted to the topic of what the law sanctions by way of comment on the defendant's silence at the investigative stage, a subject which is presently attracting wide attention.
The law relating to comment by the judge on investigative stage silence
Exactly parallel to the artificial distinction noted in the first part of this article between permissible and impermissible comment on failure of the defendant to give evidence is the kind of reasoning exemplified by the distinction which Melford Ste venson J drew in Ryan (1964) 50 Cr App R 144, at 148, between inviting a jury to draw an inference of guilt from the belated nature of the accused's explanation and commenting on the belatedness of the explanation as a factor to be taken into account when assessing its weight:
'It is, we think, clear . . . that it is wrong to say to a jury "Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt"; it is quite a different matter to say "this accused, as he is entitled to do, has not advanced at an earlier stage the explanation that has been offered to you today; you the jury may take that into account when you are assessing the weight that you think it right to attribute to the explanation.'
This distinction, too, was described by Sir Rupert Cross as 'gibberish' [1973] Crim L R, 333) and to the Court of Appeal in Gilbert (1977) 66 Cr App R 237, at 244, it seemed one without a difference, the second statement merely being an 'oblique' way of expressing the first.
At one time the thrust of the cases in which the comment was held to have been a misdirection related to the failure of the accused to give an explanation when cautioned in accordance with the Judges' Rules: see eg Leckey (1944) 29 Cr App R 128. In these decisions the Court of Criminal Appeal stressed that, as the accused was told that he was not obliged to say anything, it would be a trap for him if the jury were invited to draw an adverse inference from his silence. But the Criminal Law Revision Committee ('CLRC') were in no doubt that the rule that an invitation to draw an inference of guilt from the accused's silence was a misdirection, existed independently of any caution: (para 29). For this view the committee sought reliance on two authorities: Ryan (supra), in which the comment complained of (but in the event sanctioned) related chiefly to the failure of the accused, when apparently caught in the act of stealing and before any question of giving a caution arose, to give the explanation which he gave at his trial; and Hall v R (1970) 55 Cr App R 108, an appeal to the Privy Council from Jamaica, in which Lord Diplock, at 112, said 'The caution merely serves to remind the accused of a right which he already possesses in common law.'
R v Chandler
Although Lawton L J was a member of the CLRC, it is a curious fact that some years after the 11th report he presided in a case in which the Court of Appeal expressly repudiated Lord Diplock's dictum, although admittedly only after a far more thorough-going examination of the topic than the committee had undertaken. This was in Chandler [1976] 1 WLR 585, in which, after an exhaustive review of the authorities both judicial and academic, the court concluded that there was no rule of law that an inference of guilt could never properly be drawn in a criminal trial from the silence of a suspect when being questioned by the police.
The court were in effect therefore falling back on the old position in that what in normal circumstances precluded such an inference was the giving of a caution (ie it would amount to a trap if, being cautioned, his resulting silence could be held against him). Yet the caution was never a requirement of law; merely a rule of prudence designed to ensure the admissibility of confessions and advised by the judges in extra-judicial pronouncements. This began with the letter from Lord Alverstone CJ to the Chief Constable of Birmingham in 1906 and carried on through the two editions of t he Judges' Rules.
The 'Code of practice for the detention, treatment and questioning of persons by police officers' promulgated by the Home Office in accordance with the power conferred by s.66 of the Police and Criminal Evidence Act 1984 perpetuates the caution and to some extent upgrades its status compared with the Judges' Rules in that under s.67 any new draft code must be approved by a resolution of both Houses of Parliament.
It has not generally been appreciated during the current debate on the right of silence of suspects that abolition requires no change in the law (see Zuckerman (1973) MLR 510). In Chandler (p.590) the court stated that they were bound by the House of Lords decision in Christie [1914] AC 545, rather than Hall v R and inasmuch as Chandler governs the law of England, no clause is required in the current Criminal Justice Bill (or in any other proposed statute) to 'abolish' the right of silence. The Home Secretary need only introduce a revised code with the caution deleted, and in obtaining the necessary approval he could reassure parliamentarians that no fundamental common law basis for retaining it was at stake, because in Chandler the court expressly said there was none.
With the caution gone an inference of guilt from silence would then become permissible, subject in general to the meticulous process of reasoning which the court stipulated in Chandler (pp590 to 591) and in particular to a specific condition enunciated by Cave J in Mitchell, (1892) 17 Cox CC 503, p.508 when he said:
'Undoubtedly, when persons are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true.'
In Chandler (ibid at p.590) the court wholeheartedly adopted the description applied by the 4th edition of Cross on Evidence (p.189) to this passage as 'a broad principle of common sense'. They went on to suggest that where a policeman was interviewing a suspect in the presence of the latter's solicitor the two might well be on 'even terms'. This is one of the two safeguards (the other being the tape-recording of interviews) which proponents of the abolition of the right of silence have advanced as justifying their position. The real issue in the whole debate over the right of silence is guaranteeing the suspect's access to legal advice rather than senior policemen in the witness box blithely offering spurious grounds for denying it.
Would policeman and suspect be constructively on even terms in the event of waiver of the right to have a solicitor present? This would assuredly be straining the meaning of 'even terms'. Supposing, therefore, even terms can only exist where a solicitor is actually present, and the solicitor advises his client to say nothing. It may be envisaged that any prospect of an adverse inference can be effectively negated by the simple stratagem of an admission at trial on behalf of the solicitor that full responsibility is taken for having advised the client to say nothing, on the general ground that it was thought advisable to discourage any responses until substantial details of the prosecution case had been disclosed.
On the assumption that any change now is to be predicated on the even terms test it will achieve little. If, on the other hand, the test is to be swept away and inferences of guilt permissible in the absence of a solicitor, that will amount to going behind the justification wh ich the Home Secretary has given for abolition.