In a criminal trial a person charged with an offence may choose to give or not give evidence in his or her defence. If the choice is to give evidence the accused person, before doing so, must take the witness stand and swear on the Bible or affirm to tell "the truth and nothing but the truth". After that is done, and the evidence is given, the Prosecution may cross-examine him or her to try and discredit that evidence, that is to say, to show the Court that the defence of the Defendant is unreliable. But an accused person may choose, instead, not to give evidence. And, in taking that option, he or she is protected by Section 8(7) of our Constitution. The section provides that "a person who is tried for a criminal offence shall not be compelled to give evidence at the trial".

Instead of giving evidence in defence, the accused person may choose to go into the dock and make a statement to the Court. In that case, he or she does not swear or affirm to tell the truth. For this reason such a statement is referred to as an "unsworn statement". It is not treated as evidence. And the accused cannot, therefore, be cross-examined on that statement. Of course, the choice of the accused person to not give evidence does not prevent him or her from calling other witnesses to testify before the Court on his or her behalf.

In fact, a person accused of an offence has the right not to say anything at all. Neither give evidence. Nor make an unsworn statement. That is the third option. In the language of the law that is the accused person's "right to silence". Like the option to make an unsworn statement, instead of giving evidence and thereby being subjected to cross examination, the right to silence is provided for under the law because in a criminal trial the Prosecution carries the burden of proving "beyond reasonable doubt" that the accused person is guilty of the offence charged. The accused person is not required to prove his or her innocence. And, unless that standard of proof is met, the person charged must be acquitted. In the English case, Ferguson v. The Queen, "beyond reasonable doubt" was taken to mean that a jury in the High Court, or, a Magistrate in a Magistrate's Court "must be satisfied beyond reasonable doubt so that you feel sure" that the accused person is guilty.

The right to silence extends beyond the walls of the courtroom. It applies to the investigation of crime. A person, when questioned by a police officer about a crime, may or may not answer questions asked by the officer. It is common knowledge that before questions are asked the police officer must, first, identify himself or herself as a police officer, and then, caution the person as to the right not to say anything that may be used as evidence in a court of law against that person. There is no hard-and-fast rule as to the exact form of words the caution takes. In our jurisdiction the caution is normally issued like this: "You do not have to say anything unless you wish to do so, but what you say may be given in evidence against you". If the person does not appear to understand, the officer should explain the caution in his or her own words. And this must be done "bearing in mind that its purpose is to remind the suspect of his common law right not to provide the police (or any other potential prosecutor) with evidence against himself", or herself. Once the caution is issued, it will be assumed that if the person questioned chooses not to say anything, that person was merely exercising the common law right to which he or she has been reminded.

It should be noted that in the United Kingdom the right to make an unsworn statement is no longer available to an accused person. It was abolished by Section 72 of the Criminal Justice Act (U.K.) 1982. Hence, an accused person in England and Wales has two options: give evidence or remain silent. Also, by legislation, the silence of an accused person in the face of questioning by a police officer need not be treated as having no effect at his or her subsequent trial. Rules made in 1984 under the Police and Criminal Evidence Act of that year stated: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court".

No such legislation has been passed here in Dominica. And it is common law principles not English legislation which, in that case, guide the practice in our courts. So, unsworn statements are alive and well in our jurisdiction. The same is true of a person's right when questioned by a police officer to not say anything. Common law principles apply. And these principles lay down that an accused person ought not to be penalized for exercising that right. Put in legal jargon, "no adverse inferences whatever may be drawn" from such conduct by an accused person.

Thus, where the right to such silence has been exercised, the trial judge has a critical responsibility to most properly caution the jury. The United Kingdom Court of Appeal case, The Queen. v. Sullivan is instructive. It was one in which the Defendant did not answer questions asked by his police interviewers. Lord Justice Salmon held the trial judge's directions to the jury to be a misdirection. He stated: "... the learned judge said in the course of his summing up: 'Sullivan refused to answer any questions. Of course bear in mind that he was fully entitled to refuse to answer questions, he has an absolute right to do just that, and it is not to be held against him that he did that. But you might well think that if a man is innocent he would be anxious to answer questions. Now, members of the jury, that is really what it amounts to" ..... there can be no doubt, on the authorities, that this court must hold that in the present state of the law, what was said to the jury ..... amounted to a misdirection."

As to the right not to give evidence at trial, the law is somewhat different. The freedom to do so is not absolute. Consequences flow. While under Section 8 (7) of our Constitution, a person charged with a criminal offence is not bound to give evidence at the trial, the Section goes on to state the consequences of such silence. It stipulates: "..... Provided that nothing in this sub-section shall prevent the prosecution or the court from commenting on his failure to give evidence on his own behalf or prevent the court from drawing inferences from any such failure."

This proviso may be construed, that is to say, interpreted to mean that comments may be made as to the failure of the accused to give evidence. Inferences may also be made. But neither the comments nor the inferences should be of the kind that leads a jury to believe that the accused person is guilty of the offence with which he or she is charged. In the English case The Queen v. Bathurst, Chief Justice Lord Parker suggested that a trial Judge put it like this: "… the accused is not bound to give evidence, he can sit back and see if the prosecution have proved their case, and, while you (the jury) have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing you must not do is assume he is guilty because he has not gone into the witness box."

A final point needs to be made. It is that the right to remain silent when confronted by a police officer is qualified in a number of ways. One is that a person, when questioned, is obligated to declare his or her identity. That is to say, if asked to, that person must give the officer his or her name and place of residence. Refusal to do so renders the person liable to detention by the police. Another qualification is that the obligation of the officer to caution arises only where the officer has grounds to suspect that the person has committed an offence. Further, no caution is required except where the purpose of the questioning is to obtain information which might be used to prosecute the person questioned. The above notwithstanding, all citizens have a duty to assist police officers to prevent crime and discover offenders. But it is a civic and moral, rather than a legal, duty.

One more thing. This is a brief and simple statement of the "right to silence". The legal principle is of critical importance in the outcome of a criminal case. Accordingly, it should not be taken lightly. For this reason, accused persons are most strongly advised to consult an attorney-at-law before arriving at a decision to exercise or not exercise it.

(Dr William Para Riviere is an Attorney-at-Law)

Copyright © William Para Riviere, February 2014