Law of Evidence. write of silence Essay Example | Topics and Well Written Essays - 1250 words

Law of Evidence. write of silence - Essay workoutHowever, as observed in R v Beckles, such inferences can non be used to establish guilt. The dramaturgy of Lords in R v Webber of 2004 that pursuant to Section 34 facts may include whatsoever fact that is an issue at the runnel and tendered by the defendant in his or her defence. Moreover, facts will include any explanation or fact that the defendant would have logically orderd at an earlier acquaint of the criminal proceedings. According to the ruling in R v Ali, the only recourse a defendant may have is to either deny culpability at the police station or to invent a statement plantting out his or her defence so as to preserve the right hand to raise the defence at trial. The right to a fair trial guaranteed by Article 6 of the ECHR demands however, that prosecutors bear the burden of proof. It was ruled in R v Condron that directions to the jury moldiness be prone with caution emphasizing the right to silence. The Judici al Studies Board established 6 points intended to ensure that unseemly inferences contained in section 34 do non contradict Article 6. The 6 points correspond with the 6 requirements for adverse inferences as laid doing in R v Argent and are There must be proceedings. Failure to mention a fact must predate the charge or when organism charged. The omission must have occurred while being questioned under caution. The questions must have related to find out who committed the offence. The omitted fact must be one subsequently used in defence at the trial. The omitted fact must be one that accused was logically expected to mention. The courts have tried to set limits to what amounts as a new fact and to preserve the defendants right to remain silent. For instance in R v McGarry, the defendant was charged with causing grievous bodily harm. In a written statement taken by the police, the defendant claimed that he acted in self-defence and did not coiffe police questions. At his trial, the defendant testified to facts substantiating and building on his claim of self-defence. The trial judge tell that he was not inviting the jury to melt down an adverse inference since D had not raised a new fact but did state that it was up to the jury to determine whether or not they wished to draw an adverse inference. The defendant was convicted and appealed. The appeal was allowed because the trial judge had a duty to direct the jury that they were not at liberty to hold the defendants failure to answer police questions since he did not rely on a new fact. R v B (MT) partially deals with circumstances in which a defendant may not be aware that a new fact may provide him or her with a defence. In this case the defendant was accused of sexual raping his stepdaughter, a fry and another girl under the age of 16. When questioned by the police, the defendant could not identify a causality for the girls to lie. However, at trial, his stepdaughter testified that she resented the d efendant and did not want him to live with her mother. The defendant used this information in his defence. The trial judge directed the jury that they could draw an adverse inference from this if they felt that it was reasonable for the defendant to raise the issue of motive while being questioned by police. The defendant was convicted and upon appeal, the Court of Appeal allowed the appeal on the grounds that the fact relied on was not a fact that the defendant could have known when questioned by the police. Likewise in Murray v UK before the European Court of Human Rights it was held