Silence, Expression and Thresholds: Constitutional Discipline in the Context of the Nottingham Inquiry

by The Panda

The Nottingham Inquiry is examining the institutional interactions between mental health services, police, and public authorities prior to the attacks of 13 June 2023.¹ Its purpose is systemic rather than adjudicative. It is not concerned with revisiting criminal findings, but with testing whether institutions acted lawfully, proportionately, and transparently within the frameworks governing them. Public inquiries of this nature assess not only the decisions taken but also whether the reasoning behind them aligns with constitutional and statutory standards.

Where serious mental illness, vulnerability, and risk intersect, those standards must confront a difficult interpretive question: how should institutions evaluate silence, atypical communication, or harm-related narratives without allowing expressive form to eclipse expressive content? The rule of law demands disciplined reasoning at precisely this point of tension.

1. Expression, Silence and Evidential Weight

Freedom of expression under Article 10 of the European Convention on Human Rights protects not only conventional speech but also expression conveyed in unconventional, disjointed, or upsetting form.² Article 10 covers communicative acts capable of conveying meaning even where presentation diverges from normative expectations, and is therefore a constitutional reminder that forms of expression beyond ordinary speech can be legally significant.

Within criminal procedure, silence occupies a sensitive and contested position. Sections 34 to 37 of the Criminal Justice and Public Order Act 1994 permit adverse inferences where an accused fails to mention facts later relied upon or refuses to testify.³ Domestic authority confirms that silence alone cannot found a conviction.⁴ Nevertheless, once a prima facie case exists, silence may strengthen the prosecution’s case.

That statutory architecture permits, but does not compel, inference. It rests on an implicit premise: that silence ordinarily reflects choice unless otherwise explained. Where silence arises in the context of psychiatric illness, cognitive limitation, trauma, or communicative disability, that premise demands careful scrutiny.

The European Court of Human Rights has consistently conditioned adverse inference upon safeguards.⁵ In Murray v United Kingdom, the Court emphasised that silence cannot be the sole or decisive basis of conviction.⁶ In Condron v United Kingdom, unfairness arose where a jury was not properly directed that silence stemmed from drug withdrawal.⁷ These authorities establish a constitutional discipline: silence may carry evidential weight, but only once contextual factors capable of explaining it have been properly examined.

2. Equality Duties and Interpretive Method

The Equality Act 2010 imposes an anticipatory duty on public authorities to make reasonable adjustments for people with disabilities.⁸ This duty is proactive and systemic. It encompasses the design and operation of procedures, not merely their outcomes. The House of Lords Select Committee on the Equality Act clarified that the anticipatory duty requires institutions to anticipate potential needs, not wait for a disabled person to encounter a barrier.⁹

In University of Bristol v Abrahart, the High Court confirmed that constructive knowledge of disability is sufficient to trigger the duty and that procedural arrangements fall within its scope.¹⁰ Although Abrahart arose in the higher education context, its reasoning applies equally to all public bodies subject to the Equality Act — including health services, police, and other public authorities engaged by this Inquiry. Higher education institutions and public bodies share the same constitutional obligation to anticipate needs arising from disability and adjust processes accordingly.

Where serious mental illness or neurodevelopmental difference is reasonably apparent, the evaluation of communication and expression must reflect that knowledge. Equality law does not displace evidential rules or statutory thresholds. Rather, it shapes how those rules are applied so that individuals are not disadvantaged because they communicate atypically.

This discipline is equally relevant in Mental Health Act decision-making. The statutory criteria for detention require that detention be necessary for health or safety and that the least restrictive option be employed.¹¹ Those thresholds are fixed by Parliament. Public authorities exercising such powers are simultaneously subject to the Public Sector Equality Duty under section 149 of the Equality Act 2010.¹² That duty neither raises nor lowers statutory thresholds. It requires that decision-makers demonstrate, through recorded reasoning, how equality considerations informed clinical judgment and procedural choice.

In systems where disparities in detention have been documented, equality reforms aim to secure balance and fairness without substituting one form of imbalance for another. The constitutional question is not whether awareness of disparity should influence outcome; it is whether decision-makers can demonstrate transparently how equality considerations were integrated into threshold reasoning so that neither over-intervention nor under-intervention results from unarticulated calibration.

3. Safeguarding, Diagnostic Framing and Expressive Content

Additional complexity arises where communicative content suggests harm or abuse. In cases involving serious psychiatric illness, statements of persecution or harm may be interpreted as delusional symptomatology. Psychosis can indeed produce fixed or implausible beliefs. That clinical reality cannot be ignored.

However, safeguarding law operates on an independent axis. Under section 42 of the Care Act 2014, a local authority must make enquiries where an adult with care and support needs may be at risk of abuse or neglect.¹³ The legal obligation is not to accept every allegation as true. It is to ensure that safeguarding considerations are not prematurely subsumed within diagnostic categorisation.

Where vulnerability affects communicative form — whether through silence, flattened affect, literal presentation, or fragmented narrative — interpretive discipline becomes constitutionally significant. Appellate authority demonstrates the risks of misinterpreting communication in the presence of neurodevelopmental conditions.¹⁴ The constitutional distinction between expressive form and expressive content must be maintained through structured reasoning. Diagnostic certainty must not eclipse safeguarding enquiry without articulated justification.

The issue is not whether diagnoses are correct. It is whether the frameworks of diagnosis, safeguarding, equality, and risk assessment remain analytically distinct and transparently applied.

4. Participation, Proportionality and Coherence

Article 6 of the European Convention on Human Rights guarantees a fair trial, including the right to effective participation.¹⁵ Domestic courts have affirmed that defendants must be capable of understanding and engaging meaningfully in proceedings.¹⁶ Where expression is impaired by illness or disability, participation is implicated.

Proportionality supplies the discipline required at this intersection. In Bank Mellat v HM Treasury (No 2), the Supreme Court articulated a four-stage proportionality analysis requiring legitimacy, suitability, necessity, and fair balance.¹⁷ That framework offers a principled basis for evaluating when silence or atypical expression may justifiably support inference or intervention.

Across safeguarding law, silence may trigger an enquiry. Across criminal law, silence may be considered evidential. Across equality law, communication differences require adjustment. These domains are not doctrinally inconsistent. They require coherence in application, and the weight of authority supports such coherence.

Conclusion

Public inquiries exist to assess institutional reasoning against constitutional standards. Their legitimacy depends not only on the outcome but also on the transparency and coherence of the analytical path taken.

Silence is inherently ambiguous. Atypical expression is inherently contextual. In cases involving serious mental illness or neurodevelopmental difference, communicative form may obscure communicative content. The rule of law requires that institutions resist that obscurity through disciplined reasoning grounded in statute and precedent.

Strasbourg conditions inference upon safeguards. Equality law requires anticipatory adjustment. Safeguarding law demands an independent enquiry. Proportionality disciplines discretion. These are complementary constitutional constraints.

If the rule of law is to retain credibility where vulnerability and risk intersect, expressive form must never eclipse expressive content without articulated justification. Silence and atypical communication cannot be treated as self-proving indicators of culpability or pathology. They must be examined through structured reasoning capable of scrutiny.

That is not innovation. It is fidelity to constitutional principle.

1. Nottingham Inquiry, Opening Hearings (25 February 2026) https://www.doughtystreet.co.uk/news/nottingham-inquiry-opening-hearings-0 accessed 26 February 2026.

2. Handyside v United Kingdom (1976) 1 EHRR 737.

3. Criminal Justice and Public Order Act 1994, ss 34–37.

4. R v Cowan [1996] QB 373 (CA).

5. Saunders v United Kingdom (1997) 23 EHRR 313.

6. Murray v United Kingdom (1996) 22 EHRR 29.

7. Condron v United Kingdom (2000) 31 EHRR 1.

8. Equality Act 2010, ss 20–21, 29.

9. House of Lords Select Committee on the Equality Act 2010 and Disability, Equal Opportunities and Human Rights: First Report (HL 117, 2015) paras 82–83 https://publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/11708.htm accessed 25 February 2026.

10. University of Bristol v Abrahart [2024] EWHC 299 (KB).

11. Mental Health Act 1983, ss 2–3.

12. Equality Act 2010, s 149.

13. Care Act 2014, s 42.

14. R v PS [2019] EWCA Crim 2286; R v Sossongo [2021] EWCA Crim 1777.

15. Human Rights Act 1998 sch 1 art 6.

16. R v SC [2004] UKHL 47; R v MM [2007] EWCA Crim 1558.

17. Bank Mellat v HM Treasury (No 2) [2013] UKSC 39.