Legal Consequences of Silence and Confessions in Interviews

Silence During Police Interviews

On the facts (OTF): The suspect made a “no comment interview,” which constitutes a failure to answer a police question and results in silence at the interview. His failure was to answer a specific question regarding his presence in the bush.

• Question: Presence in the bush (specific question regarding presence).
• Answer: “No comment.” This silence can likely give rise to an adverse inference being drawn pursuant to Section 37 of the CJPOA 1994 (Failure to account for presence).

Applicability of Section 37 CJPOA 1994

Section 37 applies as the suspect will be relying on the unmentioned fact during the trial. However, Section 37(3A) provides that Section 37 is inapplicable if the suspect was denied access to a solicitor.

On the facts, Section 37 prima facie applies because he never explains his presence in the interview. However, since the request for a solicitor was rejected, Section 37 does not apply.

Admissibility of Confessions

Defining a Confession under PACE 1984

According to Section 82(1) of PACE 1984, a confession includes any statement wholly or partly (mixed statements) adverse to the maker, whether made to a person in authority or not, and whether made in words or otherwise. It can be made to any person and in any form.

On the facts, the confession was wholly adverse, clear-cut, and simple, with no blaming of others.

Excluding a Confession

To exclude a confession, one must identify the confession and evaluate the following matters:

• Section 78
• Section 76(2)(a)
• Section 76(2)(b)

Access to a Solicitor

If this right is breached, the confession can be said to have been obtained illegally. Such illegally obtained evidence can be excluded pursuant to Section 78(1).

Has the right been breached?

1. R v Samuel establishes that this is a fundamental right.
2. Section 58(1) and Paragraph 6.1 of Code C state that everybody is entitled to a solicitor.
3. Delay is permissible according to Section 58(4).
4. Conditions: Under Section 58(6), the rank of the police officer authorizing delay must be a Superintendent. On the facts, it was only an Inspector; therefore, Section 58(1) has been breached, along with Section 58(8) and Paragraph 6.6.

Conclusion: Access to a solicitor has been breached; therefore, the confession was obtained illegally.

Section 76(2)(a): Oppression

Oppression is defined in R v Fulling. The circumstances leading to oppression must be examined. In Emmerson, it was noted that shouting and swearing (words) can cause oppression. In R v Paris, it was held that the absence of violence can also cause oppression, particularly if the suspect has a low IQ.

On the facts, a normal suspect can withstand such abuse, so shouting and swearing do not constitute oppression in this instance.