Judge’s failure to warn jury over defendant’s silence did not render trial unfair
23 April 2010
Adetoro v United Kingdom (Application no. 46834/06, ECtHR)
The European Court of Human Rights has ruled that there was no violation of of the European Convention on Human Rights when a man was convicted after the judge failed to direct a jury properly in relation to the Defendant’s silence in a police interview.
The Court found there was no violation of Article 6 as the Defendant had not been convicted on the strength of his silence alone and there had been no unfairness in the trial as a whole.
The Applicant had been convicted of offences relating to a string of robberies. When interviewed by the police he had answered “no comment” to questions in relation to his movements recorded by police surveillance, association with other persons and whereabouts when the robberies were occurring. At trial, he admitted involvement in dealing in stolen cars and claimed that this explained the matters which the police had observed. He explained his silence on the basis that he did not wish to incriminate others.
In summing up, the judge omitted from his direction to the jury words to the effect that no inferences could be drawn from the Applicant’s silence unless its members were satisfied that the reason for his silence was that he had no answer to the questions asked or none that would stand up to scrutiny.
The Applicant argued that his article 6 right to a fair trial had been violated by the defective direction.
The Court reiterated the general principles relevant to the right to silence. It is not an absolute right but is “at the heart of the notion of a fair trial” (paragraph 47). It would be incompatible with the right to base a conviction wholly or mainly upon a Defendant’s silence. The question of an article 6 violation in this context is to be considered in all the circumstances of the case, considering situations where inferences may be drawn, the weight attached to inferences by national courts in their assessment of evidence and the degree of compulsion inherent in the situation.
In this case, the Applicant was under no compulsion to answer questions, having received a police caution at the start of the interviews.
The Court drew a distinction between cases where the Defendant is silent for a reason unrelated to the substantive defence (such as due to illness or legal advice), and those where the reason for silence is linked to the substantive defence. It found that this case fell into the latter category.
The deficiency in the direction did not automatically render the trial unfair. In the absence of a correct direction, the jury might well have drawn adverse inferences which it should not have done. However,
[i]t can be concluded from the fact that the jury rejected the applicant’s defence that it also rejected his explanation for his silence. It is not plausible to suggest that, having accepted the applicant’s explanation for his silence, wrongly-drawn adverse inferences led the jury to reject the applicant’s overall defence to the robbery charges (paragraph 54).
A failure to complain at some earlier opportunities about the defective direction and the fact that the evidence against the Applicant was found by the Court of Appeal to be “overwhelming” were noted.
The Applicant was not convicted on the strength of his silence alone. The Court found that there had been no breach of article 6.
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