what did R v Cowan establish and what are the give requirements before a jury can draw adverse inferences under s.35 CJPOA 1999

established 5-stage jury direction (1) burden of proof remains on the prosecution; (2) defendant has a common law right to silence (3) silent alone cannot prove guilt (4) prosecution must still establish a prima facie case (5) silence can only be 'sensibly attributed' to having no answer that could stand up to cross-examination

what is the effect of Murray v UK 1996 on the right to silence

ECtHr held that drawing Adverse Inferences from silence is not per se incompatible with Art 6 --> key principle is that whether such inferences do infringe article 6 is s matter to be determined in the light of all circumstances - weight attached to silence

what 6 conditions did Lord Bingham lay down in R v Argent before s.34

(1) must be charged in the criminal proceedings (2) failure to mention must have occurred before or on charge (3) failure to mention must have been under caution (4) the questioning must have been directed at the specific offence (5) failure to mention something later relied upon in their defence (6) failure to mention something they could reasonably have been expected to mention

how did R V Beckles [2005] and R v Hoare [2005) address legal advice to remain silent?

Hoare and Pierce - jury should consider whether it was reasonably for D to rely on that advice Beckles then set out a 2-stage test: (1) Did D genuinely rely on that advice and (2) was it objectively reasonable to do so....

what does s.35(1)(b) CJPOA 1994 provide, and how have courts interpreted 'undesirable'/

-adverse inferences cannot be drawn from silence at trial where 'the physical or mental condition of the accused makes it undesirable for him to give evidence' -Friend No1 (1997) established that such conditions needed to be severe, and Friend No 2(2004) shifted to a focus on the quality of evidence given their condition -Tabbakh [2009] established that the importance of D's evidence should be considered - but Jain (2022) criticiqued this on the basis that the jury will always find the defendant's testimony significant.

what does R v McPherson [2006] add to s.34 CJPOA 1994

reinforces the reasonableness gateway --> jury must be satisfied that D could reasonably have been expected to mention this fact

what do Condron v UK (2001) and the CJPOA 1994 together establish about the relationship between s.34/35 and ECHR Art 6

-established that these provisions are capable of being compatible with Article 6 -But maintained that particular caution is required. Silence is only relevant where the prosecution evidence calls for an explanation, and only then should its persuasiveness be assessed.

Summarise Ananya Jain's (2022) central argument in 'Silent lambs to the slaughter' and her proposed solution

two core flaws: (1) the law does not account for innocent reasons for silence, and (2) the law cannot be justified on principled grounds - undermines individual autonomy and dignity, the presumption of innocence and disproportionately impacts vulnerable communities - on the 'evidential function' rationale she said silence often reveals nothing about guilt because (a) innocent people have a variety of reasons for staying silent and (b) the law already requires sufficient evidence for a prima facie case before inferences can be drawn -Calls for a repeal of the relevant CJPOA provisions.

what is Jain's critique of the incentivizing function?

(1) it is inconsistent with individual autonomy and dignity to compel citizens to cooperate against themselves in a process designed to find them liable (2) it undermines the presumption of innocence - associating silent with guilt simply because D has not verbalised their innocence betrays the princple that the prosecution must prove guilt (3) it disproportionately impacts vulnerable communities --> Bucke (2000) shows a sharp post-1994 decline in black suspects exercising their right to silence, explicable by fractured police-community trust

what is the significance of R v Dixon [2013] for the s.35(1)(b) exception and vulnerable defendants

18yr old defendant wiht ADHD, low IQ, learning difficulties, limited language, poor working memory and anti-social behaviour --> adverse inference still allowed to be drawn because he was granted an intermediary (supposed 'level playing field') - high bar for access to an intermediary itself should signal the significance of the condition (OWusu-Bempah, 2018) and intermediaries cannot manage the emotional reaction or demeanour of defendants

who qualifies for special measures under s.16 and s.17

-automatically if the witness is (1)(a) under 18 at the time of the hearing or (1)(b) quality of evidence likely to be diminished under section 2 (2)(a)(i) has a mental disorder recognsied by Mental Health Act 1983, or (ii) impairment of intelligence or lack of social functioning, or 2(b) has a physical disability/disorder -if the court is satisified that the quality of evidence given by the witness is likely to be diminished by fear/distress -(2) in determining whether a witness falls within this category court mst take into account (a) nature of the offence, (b) age of the witness, (c) social/cultural/religious factors and (d) behavior of the accused toward the witness

what is the s.19 test for granting an SMD?

once the court determines eligibility the court must determine (a) whether any special measures would improve the quality of evidence and (b) if so, which measures would be likely to do so --> quality by s.16(5) meaning 'completeness, coherence and accuracy'

explain the primary rule for child witnesses under s.21

any pre-recorded evidence (ABE evidence) to be admitted via s.27 (video-recorded evidence in chief) and for any other evidence to be given via live link (ss.24) - ss.28 requires ground hearing before - only the witness can opt out via s.21(4) which court will disapply if it is satisfied this wouldn't diminish evidence quality

what did R v Camberweell Green Youtb Court [2005] confirm about special measures and Article 6?

HoL held that smds improving the evidence of child witnesses is compatible with Art 6 because (1) child witness protection improves evidnce qyality, (2) 'there is no absolute right to confrontation' per Baroness Hale, and (3) judicial discretion remains to ensure overall fairness

what does Doorson v Netherlands (1996) establish about protective measures and Art 6(3)(d)?

anonymous or protective evidence is permissible under Art 6 provided the defence is not disproprtionately handicapped and the conviction is not based solely or decisive on unchallenge evidence.

Summarise Hoyano's (2001) central arguments in 'Striking a balance'- ar SMDs compatible with Article?

most SMDs are compatible: (1) video interviews as examination in-chief are compatible - art 6 does not stipulate how and when evidence must be given, provided D retains an adequate opportunity to challenge it; (2) pre-trial cross examination complies with Article 6 (3) s.27(4) admitting video without cross-exmination is the most ECHR-vulnerable provision (4) screens and live link preserve adversarial testing; (5) intermediaries are acceptable where they amplify or clarify without altering content -overall framework reflects a pragmatic and flexible interpreation of Art 6(3)(d).

what are Hoyano's (2010) main criticisms of the Coroners and Justice Act 2009 amendment to SMDs?

argues that the 2009 measures are insufficient for several reasons: (1) child defendants are not automatically eligible for SMDs - the defence must prove compromise intelligence/social functioning. --> to satisfy the additional 'interests of justice' test s.33A(2)(b) means child defendants face more hurdles than child witnesses, which the Royal College of Psychiatrists called 'anomalous and unacceptable' (3) adult defendants must have a mental disorder or significant impairment, --> this asymmetry infringes the equality of arms principle under Art 6(3)(d), which the 2009 Bradley Report said is 'equally important in terms of exercising justice that similar support should be given'

what barriers to vulnerable defendants using live-link evidence did Fairclough identify (2016) identify from practitioner interviews?

3 main barriers: (1) there is a fundamental lack of awareness - 3 of the 18 had used it, with 1 invoking it via 'the judge's inherent power'; (2) poor identification of vulnerability --> undiagnosed mental health/learning difficulties are not screened and individuals may conceal them for fear of unfavourably prejudicing the jury; (3) perception of no benefit -> practitioners assume that D's physical presence in court negates any need for a live link, without recognising that presence does not equal meaningful participation.

what normative arguments does Fairclough (2017) make for defendant participation rights, and what practical barriers does she identify?

argues defendants hold key participatory rights under Article 6 ECHR and that 'effective participation' (SC v UK) requires understanding, engaging with the trial and communicating with counsel. - Duff et al (2007): if we want to protect defendants from the state's potentially oppressive penal power, they must be assisted in responding to accusations (reflects a Kantian respect for persons as ends not means) Practical barriers: (1) professionalisation and managerial court culture marginalises defendants and reduces them to 'passive spectators'; (2) court language and procedures is inaccessible, compounded by socio-economic/ethnic disparities (3) Mulcahy (2013) 'the use of the dock appears to signal the expectation that the defendant remains silent and passive' (4) eligibility for SMDs is not only restrictive and inconsistently applied but as held in Rashid [2017] in most cases competent legal representation suffices --> this is because 'too often defendant participation is viewed primarily as a means of efficient fact finding'

what is the significance of T and V v UK (1999) for child defendants under Article 6?

argued CC procedure was too intimidating and breached their right to effective participation. - case was partly responsible for subsequent modifications to youth court procedure and often feeds into the asymmetry critique of the YJCEA for excluding child defendants from the same SMD regime as child witnesses

what does R v Hampshire [1995] add to the s.27 Video evidence regime/

judge retains the power to exclude video-recorded evidence - must in most cases watch the recording before deciding and is consistent with the broader principle that the statutory SMD regime is subject to judicial control and the overriding duty to ensure a fair trial.

when does a co-accused become both competent and compellable for the prosecution?

under s.53(5) a person who 'ceases to be charged' becomes competent for the prosecution (1) guilty plea - R v Boal (2) acquittal - R v Conti (3) severance of indictment - R v Richardson (4) nolle prosequi

What does Barker [2010] approved by Wills [2012] add on child witness competence?

Barker confirmed the approach to determining whether, at the time of trial the child can understand questions and give understandable and give understandable answers -->also reinforced that courts must ensure safeguards surrounding special measures are complied with.

what does R v Welland [2018] establish about a defendant's right to give evidence?

the CoA held that failing to adjourn a trial suffers severe medical issues that prevent them giving evidence renders the trial unfair - confirms that 'the accused's right to give evidence if he wishes is an essential aspect to a fair trial'

set out the full s.80 PACE compellability framework for spouses and civil partners

-s.80(1)(b): competent for the defence (unless jointly charged) -s.80(2): compellable for the defence (unless jointly charged) - s.80(4) -s.80(2A): compellable for the prosecution or for a co-accused ONLY in respect of a 'specified offence under s.80(3) --> includes: (a) assault on, injury to, or threat of injury to the spouse/CP or a person under 16 at the material time; (b) a sexual offence against a person under 16; (c) attempting/conspiring/aiding/abetting any of the above (c) -s.80(4) no person charged can be compelled to give evidence -s.80(5) a former spouse is compellable as if never married Civil Partnership Act 2004, s.84(1) applies the same regime to civil partners - recognises legal relationships (R v Khan, R v Bala) - Cohabitees outside the regime (R v Pearce)/Van Der Heijden v Netherlands - engages article 8, but justified but Article 8(2)

what is the significance of R v A(B) for the interpretation of involves in s.80(3)(a)

The offence must have 'the real possibility of an assault' as one of its defining elements, the wife was not compellable - Stockdale v Wortley (2013) cite this as producing 'an arbitrary and unpalatable distinction.'

what was the legal outcome of R (CPS) v Registrar General

By exercising their right to marry they would not commit the offence of perverting the course of justice - Spencer (2003) uses this case to illustrate the deficiency of English law in not dis-applying spousal privilege where a marriage is entered into solely to defeat compellability --> draw comparison to cohabittees

What are Munday's 4 criticisms of s.80 PACE in 'Sham Marriages and Spousal Compellability'

(1) PACE 1984 sought to balance marital sanctity against the public interest in prosecution but leaves spousal non-compellable in a 'considerable range of circumstances'; (2) on sham marriages, standard works are divided - Cross and Tapper state spousal competence rules apply 'whatever the motive for marrying' while Phipson suggests courts 'might feel able to disregard a wholly sham marriage where the only purpose was to avoid criminal responsibility'; (3) PACE is silent on sham marriages; (4) other jurisdictions solve this more elegantly - Germany disapplies privilege where the marriage was entered to take advantage of it

what problems with s.80 PACE does Stockdale & Wortley (2013) identify?

defendants can marry to circumvent this(Hoskyn; CPS) (2) the age threshold in s.80(3) produces arbitrary results --> Tapper: 'the accused wife is compellable against him if he kissed a 15-yr old, but not if he raped and murdered a 16yr old'; (3) list unduly restricts spouses in serious cases (R v L) - mother not compellable in rape case; (4) the word 'involves' creates uncertainty (R v A(B)); (5) compelling a spouse does not guarantee truthful testimony, relucant spouses risk being treated as hostile witnesses

what does Spencer (2003) in the Cambridge Law Journal suggest as comparative solutions to the sham marriage problem?

Spencer compares the UK law to France; where spouses must testify and submit to questioning but do not take the oath and cannot be prosecuted for perjury - Some US states allow prior statements of a witness who exercises privilege to be admitted as substantive hearsay --> Spencer notes the Criminal Law Revision Committee (1972) proposed this last solution for England, but it was not adopted

What is Stockdale & Wortley's (2013) core argument about why spouses refuse to testify, and what support mechanism do they propose?

they argue that a spouse's willingness to testify is not primarily a function of the compellability provisions but a personal choice shaped by complex reasons: risk of marriage and reconciliation prospects, fear of retaliation, financial insecurity, etc -Lord Edmund Davies argued that there would be less harm to marital sanctity in compelling a spouse to testify in leaving the choice to her - since the purpose of a criminal trial is to 'protect those who for one reason or another do themselves seek that protection --> the proposed solution is coordination between support, agencies, police and prosecutors per the EU Victims Directive (2012)

what did R v Howell [2003] add to the legal advice silence analysis?

court refined the approach to focus on whether a defendant's silence lacks a 'reasonable basis' - an advise inference may still be drawn even where a solicitor advised silence -key case for Argent condition (6) -Beckles [2005] added the two-stage genuine reliance/objective reasonableness test