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Going ‘no comment’: a delicate balancing act
Thursday 24 May 2012 by Catherine Baksi
Sam Hallam’s conviction for the murder of Essayas Kassahun was overturned last week by the Court of Appeal, after he had spent seven years in jail.
Barrister Henry Blaxland QC said Hallam, who was 18 when sentenced, had been the victim of a miscarriage of justice brought about by a combination of ‘manifestly unreliable identification evidence’, a ‘failure by police properly to investigate his alibi’ and ‘non-disclosure by the prosecution of material that could have supported his case’.
But another factor that his supporters felt had gone against Hallam at his original trial was the fact that he had made no comment in his police interview. There is no suggestion that Hallam’s solicitor was negligent in advising him not to answer questions, but it raises the question of when it is in a defendant’s best interest to keep quiet and when exercising the right to silence could potentially do more harm.
The impression given by TV crime dramas is that solicitors almost invariably advise their clients not to answer questions, or to put in the vernacular ‘go no comment’. But the chair of the Law Society’s criminal law committee, Richard Atkinson, says this is not the case. ‘Solicitors don’t do so as a matter of course. You have to assess all the factors at the police station when deciding whether to advise a client to answer questions, put in a prepared statement or give a no comment interview.’
Atkinson says that the issue of paramount importance is the level of disclosure given by the police. If the police decline to give proper disclosure, solicitors could be negligent if they fail to advise the client of their ability not to answer questions, he says.
However, in the words of Franklin Sinclair, partner at criminal firm Tuckers, the decision is a delicate balancing act: despite the fact that it is for the Crown to prove guilt, courts and juries can draw adverse inferences from a defendant’s failure to answer questions.
This stems from a change in the law in the 1994 Criminal Justice and Public Order Act, which modified the right to silence for suspects being questioned by police in England and Wales.
The previous caution given was: ‘You do not have to say anything if you do not wish to do so, but anything you do say may be used against you in a court of law.’ This right prevented adverse inferences being drawn when suspects remaining silent.
The 1994 act diluted the long-established common law right, modifying the caution to: ‘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. Anything you do say may be given in evidence.’
Sinclair suggests that, aside from situations when the police reveal no cogent evidence against a suspect, the balance tips in favour of silence, when ‘you’re not happy with the client’s story because it appears unlikely or likely that it would not stand up, or where you are worried about his character’.
He adds: ‘You may need to protect him as he may not be a good speaker and may not put his thoughts well, so although he may have a good defence, by answering questions he might talk himself into other problems.’
On the other hand, Sinclair says a client should answer questions where the police present evidence, which on the face of it implicates him and he has a reasonably plausible line of reply. ‘This is especially so, where there are things that client needs to say in order to put his defence later. For example, you can’t give a no comment interview to a charge of assault if your defence is self defence, or to rape if your defence is consent.’
Where clients are advised to give no comment and elect to do so, Sinclair suggests that in order to rebut any inference that the client has later falsified his account, solicitors should write a note of anything he says to them at the time and get him to sign it. ‘If he makes a no comment interview and then gives evidence, you can produce the note at court as evidence of what he said earlier.’
London’s Doughty Street Chambers has set up a free telephone advice line offering help to solicitors with appeals and Criminal Case Review Commission matters.
Barrister at the set Kirsty Brimelow QC was against the watered down caution, but says that while juries can’t always follow the judge’s direction on the issue, they tend not to hold it against defendants who go no comment. ‘Juries would understand the shock and horror experienced by someone charged with serious crimes like murder who was advised by their solicitor to go no comment. And would expect, particularly a young person in this situation to follow the professional legal advice given to him, without holding his silence against him.’
As we cannot know what sways juries when it comes to making decisions, it can’t be known to what degree silence is held against someone. So without a change in the law to revert to the original caution, which is unlikely, it is vital that appropriately skilled solicitors are present at police stations to carry out that ‘delicate balancing act’.
Catherine Baksi is a reporter on the Gazette
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