In a democratic country like United Kingdom, the constituents enjoy several forms freedom and protection from abuses by any person, authority or entity. Such rights are not limited to people with good standing but also cover people who are accused of a crime. Those accused of crimes are granted with rights to prove their innocence. These rights has its similarity with the United States of America’s landmark case, Miranda v. Arizona , where the evidences against the accused were found inadmissible because the accused was not informed of his rights when arrested and investigated.
In short, the dismissal of the said case showed that the guilt of an accused can be nullified by mere failure of the authority to provide such rights. In addition, it also shows that conviction is a matter of life that requires full protection of the accused’s rights. In this paper, the laws of the states and the jurisprudence shall be considered an essential source of the study.
At the same time, the paper will also incorporate with the provided cases the pertinent laws and jurisprudence in the given case.
LITERATURE REVIEW Applicable rights of the accused and laws governing the case 1. Under Art. 6 of the European Convention on Human Rights; a. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. b. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 2.
Under the common law and an international standard 1. Privilege against self- incrimination. According to Toby Wynn ‘s article, The Privilege Against Self- Incrimination, it is the right of the accused not to be required to answer a question, disclose a document, or answer an interrogation if doing so would tend to incriminate him in the commission of a crime. Further, this privilege was officially embodied in Sec. 14 of the Civil Evidence Act 1968 (Lauterpacht, 1987, p317) which states that;
“The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law; and shall include a like right to refuse to answer any question or produce any document or thing if to do so would tend to expose the husband or wife of that person to proceedings for any such criminal offence or for the recovery of any such penalty.
” 2. Right to silence. According to Wynn, it is the right of an accused not to say anything when being interrogated by a constable after being accused of a crime. 3. Under the Criminal Justice and Public Order Act 1999 a. Section 34;
“Where, in any proceedings against a person for an offence, evidence is given that the accused (a) at any time before he was charge with the offence, on being questioned under caution by a constable trying to discover whether or whom the offence has been, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be.
When this subsection applies, the magistrate’s court, in deciding whether to grant an application for dismissal; the court, in determining whether there is case to answer; and the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. ” b. Section 34 (4), This section does not prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section.
c. Section 35 (3), on failure of accused’s silence in trial… the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question. Interpretation of the rights and laws and its application to the case 1. Right to fair and public trial. Every accused has a fundamental right to have his case be heard and tried before a verdict is rendered which shall start from investigation to the laying down of the judgment.
At the trial, the accused is given reasonable time to prove his innocence by providing evidences and presenting witnesses to support his claim. In addition, the judge and jury are expected to be impartial in rendering their decision. 2. Right to be presumed innocent until proven guilty. A person who has been suspected of a crime does not necessarily mean that he is guilty. His guilt shall be established by proof beyond reasonable doubt.
Basically, proof beyond reasonable doubt is the degree of proof which produces conviction in an unprejudiced mind while burden of proof is the duty of the party to present evidences on the facts regarding the issue that are necessary to establish his or her defence using the amount of evidences required by law (Legal Dictionary, 2008). In any case, the prosecution shall collect and present enough proving evidence to convince the judge and jury (Legal Dictionary, 2008).
3. Privilege against self- incrimination. According to Toby Wynn, the privilege against self- incrimination, as an international standard, an accused is not compelled to answer any question and to provide any documents or materials or to subject himself from physical examination to the constable or to the jury if doing so would lead to his conviction. Moreover, according to Wynn’s article, this right is the cornerstone of the common law to avoid miscarriages of justice.
In addition, the privilege against self- incrimination protects the accused from his right not have adverse inferences drawn from his failure to answer as laid down by Criminal Justice and Police Order Act 1994 (Lloyd, 1996). From the laws provided, it can be inferred that the provisions of the Criminal Justice and Police Order Act 1994 is contradictory to the accused’s right to refuse answering any questions by the investigating officer because the court is allowed to infer conviction from the mere silence or failure of the accused to provide evidences.
4. Right to silence is likely related to privilege against self- incrimination. Usually in a case, when the accused is being questioned, the solicitor or his legal counsel advises him to remain in silent in order to protect him from unjustifiable conviction. However, silence is not absolute. It shall be established that the silence was exercised because it was advised by the solicitor to avoid divulging of facts which may be prejudicial to his case. 5.
Section 34 to 38 of the Criminal Justice and Public Order Act 1999 states that the judge may draw proper inference from the accused’s failure to give evidence or refusal, without good cause, to answer any question at trial; to mention certain facts on being interviewed under caution or on being charged; to account for objects, substances or marks; and failure to account for his presence at a particular place (Lloyd, 1996). In the case of R v Condron and Condron , the judge drew an inference from the failure of the accused to mention additional facts during interview.
Applying these rights on the case of Billy, on the first question, it can be viewed that the judge’s direction was based on Section 34 of the Criminal Justice and Public Order Act 1994 which allows the judge to draw statutory inference from the silence of Billy while being questioned by the investigating officer. In addition, the judge and jury deemed that the solicitor’s advice to Billy to remain silent was because no answer can be provided. However, the facts of the case is silent as to the establishment of the reasonableness of Billy’s silence.
On the other second question, Billy has the right to appeal his case on several grounds. First is the deprivation of Billy of his right to silence and privilege against self- incrimination. Second is the questionable statutory inference and last is the deprivation of the Billy of his right to fair trial. When Billy was being questioned, the solicitor advised him to keep silent. As a legal counsel who is burdened with duty to protect the rights of his client, he found it proper for the accused to keep silent because he was suffering from epileptic seizure at the event of the crime.
Mentally, Billy is incapable of answering the questions of the investigating officer. Moreover, the failure of Billy to answer the questions should not be used against him. Thus, his silence should have been excused from the application of the provisions of the Criminal Justice and Public Order Act 1994. Although the judge drew an inference from the silence of Billy when he was questioned by the investigating officer, it failed to establish the ground of the silence as unreasonable. In the case of R v Cowan , the burden of proof to establish guilt beyond reasonable doubt lies on the prosecution all throughout the trial.
The judge must establish that the silence of Billy was unreasonable. In addition, according to the case of Condron v UK , silence must not be the sole or main evidence against the accused. In addition, in the case of R v Argent , the Court of Appeals decided that account must consider all the relevant circumstances existing at the time of questioning. Matters such as mental capacity, state of health, knowledge and legal advice, among others, are all part of the relevant circumstances. Billy who was suffering from epileptic seizure, which is a mental disorder, was not considered by the judge.
Lastly, Billy was deprived of fair trial because the judge rejected Billy’s susceptibility to epileptic seizure despite the fact that it was supported by medical evidence. Billy’s susceptibility could have established a doubt on the mind of the jury that he can not be able to remember the things that surrounded the crime. The judgment could have been more reliable if Billy was given reasonable time to recollect his thoughts in order to give a justifiable testimony. From the reasons provided, Billy can then have reasonable grounds to appeal his case to the higher court. CONCLUSION
The rights of accused to silence and privilege against self- incrimination shall not be confused with the right of the court to draw inference from failure of the accused. Every relevant circumstance surrounding the case shall be given paramount importance and shall be strictly investigated. Such exercise of rights shall not be indiscriminately presumed as guilt. The judge and the jury shall weigh every ground of right so that justice will not be curtailed. Again, conviction is a matter of life, and the jury shall see to it that no life will be thrown useless in jail by mere exercise of a groundless right.