Police station adviceIan Dennis, professor of law at University College London, has recently argued that the combination of the Strasbourg jurisprudence on article 6 of the European Convention on Human Rights and an increasingly restrictive interpretation by the English courts have resulted in the marginalisation of section 34 of the Criminal Justice & Public Order Act 1994.
When inferences from silence in the police station are possible at all, he argues, they provide no more than support for an existing prima facie case ((2002) Crim LR 25).
This reflects the approach which should be taken by defence solicitors when advising suspects in the police station.
Their first objective is to identify whether or not there is a case for the suspect to answer based on admissible evidence that will be available at court.
Any failure by the investigator to disclose such evidence is likely to result in a no-comment interview.
The decision in R v Betts and Hall (2001) Crim LR 754 emphasises the importance of the view taken by the solicitor.
The court stated that 'section 34 should be interpreted as permitting the drawing of an adverse inference only where the jury was satisfied that the defendant was silent because he had no answer to the allegations, or none which could stand up to questioning and investigation.
The judge made repeated references to valid reasons and adequate explanations, whereas what mattered was not the quality of the defendant's decision but its genuineness.
If it was a plausible explanation that the reason for not mentioning facts was that the defendant acted on the advice of his solicitor and not because he had no or no satisfactory answer to give the police, then no inference could be drawn.'In situations where a solicitor does come to the view that no comment should be made it will now be important that this is said expressly during the course of the tape recorded interview.
This will place the advice plainly on the record and, as long as no reason is given, will not raise issues of privilege.
While it will be for the jury to decide the genuineness of the suspect's decision, it will be difficult for the disclosed advice of the solicitor to be ignored.
When considering the genuineness of a decision to make no comment a court must have in mind whether there may be a plausible reason for silence, such as 'keeping his powder dry on the advice of his solicitor' (R v Milford (2001) Crim LR 330).However, in the majority of cases it will be possible for investigators to disclose a prima facie case.
This will apply particularly when sections 36 and 37 of the Criminal Justice and Public Order Act 1994 apply.
In those circumstances, solicitors face two ways in which the suspect may handle the investigation.
In many cases it will be possible for a suspect to deal with the matters frankly in interview with the solicitor taking an active role to ensure that the interview remains fair and relevant.
However, in a number of defined situations it may be safer for a suspect merely to mention facts in a statement prepared with the active assistance of the solicitor.
The practice of preparing statements is given significant support by the decision in R v Ali  6 Archbold News 2.
The court held that no inference was possible when a defendant relied at trial on any fact mentioned in a prepared statement handed in at the investigation stage.
This approach has significant advantages.
The facts mentioned by the defence can be expressly tied to the disclosure made by the investigators.
By listening to the disclosure made during interview, on which no comment is made, a formal prepared statement can later be prepared and in appropriate cases disclosed.
This enables a suspect to mention significant facts while avoiding entanglement in unnecessary detail.
This approach will be particularly suitable for vulnerable or reluctant suspects or suspects who are aware of matters which are not yet known to the police.
It will enable suspects to deny facts without making admissions which the Crown may or may not be able to prove at trial.
However, the approach also has its dangers.
In R v Ali the defendant was convicted because the prepared statement did not contain critical facts which it had been reasonable to mention at the time.
Furthermore, if facts are placed on the record in a prepared statement, a defendant is unlikely successfully to be able to deny them at trial.Once it has been decided to prepare a statement there are a series of opportunities to disclose its content.
This may be done at some point during the investigation but is probably best done after initial interviews are complete.
In the alternative, a prepared statement may be handed in at charge.
This will prevent further interviewing and any further inference from silence.
When the Crown may not be able to establish a prima facie case, it may be decided to hold back the signed, dated and timed statement to be used only as an exhibit should it be necessary for the defence to give evidence at trial and show that the facts have not recently been fabricated.Therefore, following these decisions, the flow chart below may be of some assistance to the police station adviser.
By Anthony Edwards, TV Edwards, London