What is the sound of one hand clapping?
The Right to Silence
By Seryozha Cenac
Barrister-at-Law
Crown Prosecution Service

The aim of this paper is to discuss the new provisions in the Criminal Code (ss.909 and 912), as they relate to an accused person’s right to silence. The following remarks shall be prefaced by the assertion, that justice has two sides – fairness to the defence as well as to the prosecution. The paper will argue that the new provisions in the Code do not expunge the rights of the accused under the Constitution - the right remains assured, but is now expressly qualified.
In criminal proceedings, an accused person has always enjoyed the right to silence and/or the privilege against self-incrimination, with the prohibition, of any adverse inferences being drawn therefrom. That right, was enshrined in the Saint Lucia Constitution Order 1967 (s.8 (7)), and has been reproduced in s.8 (7) of the Saint Lucia Constitution Order 1978. Similarly, the soon to be implemented Criminal Procedure Rules have also expressed the same: s.5.7 (1) (e).
This same right has been resident in English law from the 12th century, and was finally codified in the Judges’ Rules of 1912. However, the United Kingdom has since departed from that prohibition, as it was considered to be a principle wrongly applied and founded on a false premise. The Criminal law in Saint Lucia has similarly attempted to depart from the same, but, marred by significant opposition directed at it, the impact has been ineffectual.
The argument for the defence is predicated on the premise that our Constitution preserves the right to silence, a right which cannot be derogated from by a simple Act of Parliament, whereas the United Kingdom Parliament is free to derogate from that principle, as they do not have a Constitution. This argument as it stands, is misconceived. It is not that the United Kingdom does not have a Constitution, but rather, it does not possess a written one.
In short, the United Kingdom’s constitutional view (unwritten nature of its Constitution) turns on two main principles: on the one hand, it affords flexibility in governance; and on the other, that one Parliament cannot bind any succeeding Parliament. Therefore, the defence argument would have to be restated in the following terms: the right to silence is currently entrenched in our Constitution and cannot be altered by a simple Act of Parliament, unless the bill is first supported by three-quarters of the House and then approved on a referendum: s.41 (2) and (6) of the Saint Lucia Constitution Order 1978.
Yet, it must be asked: is there any express provision established under our Constitution, which enjoins the drawing of inferences? Not on its face. The Constitution appears to be silent on this point. Then is it implicit? If one squints very hard, one may well infer, that if no man can be forced to say something in his defence at his trial, it would be impermissible to draw any inference, for he would inadvertently assist the Crown in proving the case against him.
However, the revised Criminal Code 2004, s.909 (1) states: “Subject to any guidelines…at the trial of an accused for an offence, the accused shall, where the prosecutor has complied with s.908 (primary disclosure) give a defence statement to the prosecutor, and the court.”
Here lies the offending section. In particular the offending word “shall”. According to Maxwell on the Interpretation of Statutes, and Stroud’s Judicial Dictionary, “shall” may be interpreted as denoting either an imperative or permissive duty. If “shall” were construed as imperative, then that section may well be unconstitutional.
Contrarily, in the circumstances, if construed together with our Constitution, it is clear that what is meant is that the defence cannot be compelled to do so – thus it is permissive. Consequently, the right to silence remains unaltered, and has not been impinged upon – s.909 is consistent with our Constitution. The accused remains free to give a statement or exercise his right to say nothing.
The Code under s.912 (1) goes further and states: “Where the defence –
a) fails to make that statement…
b) …
c) sets out inconsistent defences in a defence statement given under s.909 …
the Court or, with the leave of the Court, any other party, may make such comment as appears appropriate or the Court or jury may draw such inferences as appear proper in deciding whether the accused committed the offence concerned.

(2) A person shall not be convicted of an offence solely on an inference drawn under subsection (1)”.
Here lies the aggravating section. This section is the heart of the modification. The lay person may wonder, “What is the problem?” The problem is this – are these sections meant to force the accused, from the fear of inferences being drawn, to say something where otherwise he may have remained silent? It is the case in Saint Lucia, and was previously the case in the United Kingdom, that it is/was a misdirection for the judge, to direct a jury to draw any inferences from an accused person’s silence: Gilbert (1978) 66 Cr.App.R.237.
The defence attorney may further lay the objection that under the Evidence Act 2003 (EA 03), s.76 (1) states: “no adverse inferences may be drawn against a party who remains silent during the course of official questioning”. Official questioning, as defined by the EA 03 (s.2) is “any questions asked by an investigating official into the commission of an offence” – obviously, largely referring to police officers.
Again, under s.584 (2) (a) of the Code: “If a person arrested is to be questioned, he or she shall be informed that the person has the right to remain silent, without such silence being a consideration in the determination of guilt or innocence…”
The prosecution may reply that it does not apply at trial, as the phrase “official questioning” under the EA 03, and “If a person arrested (emphasis mine) is to be questioned…” are not inclusive of questions put at trial.
In support of that contention is S.76 (3) of the EA 03 which says that subsection 1 does not preclude an inference that goes to a fact in issue. Therefore, it can be argued that as the guilt of the accused is always a fact in issue, an inference could be drawn.
A fortiori, the Code, being a later act than the EA 03, would have impliedly repealed s.76 of the EA 03, as it relates to criminal matters. And, s.584 (2) relates only to questions on arrest. Hence, the Code does not impinge on any law. What remains, is the constitutionality of ss.909 and 912. To assist the argument, the United Kingdom jurisprudence on this point will be considered and submitted as persuasive authority, that ss.909 and 912 of the Code accords with our Constitution.
The United Kingdom is a signatory to various human rights treaties, one of which is the European Convention on Human Rights, ratified into United Kingdom law by virtue of the Human Rights Act 1998 (HRA 98). Article 6 of the Convention confers on the accused the right to silence. In other words, the HRA 98 does for the accused in the UK, the same as that done for the accused under the Constitution of Saint Lucia.
Notwithstanding article 6, English law had allowed inferences to be drawn from an accused person’s silence at trial where the prosecution had made out a case to answer on every element of the offence: s.35 Criminal Justice and Public Order Act 1994. However, this provision was adjudicated before the European court, so as to determine whether or not it was consistent with the Convention viz, the right to silence, the privilege from self-incrimination, and how s.35 impacted on the right to a fair trial, guaranteed under the Convention.
In interpreting the UK position on the right to silence, the Strasbourg court decided that neither the right to silence nor the privilege from self-incrimination are absolute rights, but are capable of yielding to inferences and comments, where the circumstances are particularly compelling. Neither of which would render a trial unfair.
In other words, Strasbourg is saying, that the right to silence: “cannot and should not prevent that the accused’s silence, in circumstances which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution”: John Murray v UK (1996) 22 EHRR 29 at paragraph 47.
This says that the right to silence, and the privilege from self-incrimination, are not absolute rights, but, taken together with other supporting evidence, inferences may be drawn. But, a person could not be convicted solely, or mainly from that inference.
Simply, the inference or comment would be allowed, where a provable prosecution case has been established, and it is felt that the defendant remains silent because “he has no story to tell or one which cannot stand up against scrutiny”. The prosecution case may then be accepted as proved. “May” here meaning “allowing silence to be taken in account in assessing the persuasiveness of the evidence adduced by the prosecution”: Murray v DPP (1993) 97 Cr.App.R.151