In R v Argent 1996 The Times December 19 the Lord Chief Justice gave further assistance to solicitors working in the police station on how to approach inferences from silence under s 34 of the Criminal Justice and Public Order Act 1994.DISCLOSURE: The case emphasises (following R v Condron 1997 1 Cr App R) that it is the reasonableness of the suspect's decision in all the circumstances whether to exercise the right to silence that is central to a limited disclosure than is normal but noted that there is no obligation to disclose.

A solicitor must discuss the issue fully with the suspect.

The issue has been further examined in R v Roble (21 January 1997; 9602955X4) where the Court of Appeal stated 'good reason [for silence] may well arise if, for example, the interviewing officer has disclosed to the solicitors little or nothing of the nature of the case against the defendant, so that the solicitor cannot usefully advise his client or, where the nature of the offence, or the material in the hands of the police is so complex, or relates to matters so long ago, that no sensible immediate response is feasible'.THE APPROACH: In Argent the Lord Chief Justice indicated that, for there to be any question of an inference from silence, there must:-- be proceedings in which the issue arises; thus if solicitors are unable to be satisfied that there is sufficient evidence to bring a charge, the appropriate advice will still often be silence.-- be a failure to answer questions prior to charge.

This will encourage the growing practi ce of making a considered statement at the moment of charge which is then placed with the charge record.

Questioning thereafter is only allowed in restricted circumstances (PACE code C para 16.5).

In any event no inference from silence is possible from questioning after charge under section 34.-- be a failure to answer questions during questioning under caution.

Thus where there is no power of arrest, clients should consider declining to be interviewed if they would wish to exercise the right to silence.-- be a failure to answer a question directed to discovering whether and by whom an offence has been committed.

This is a helpful indication for solicitors whose duty to intervene in interview is now given considerable prominence.

Apart from any other reason justifying intervention, solicitors will be able to ask investigators how a question is directed to discovering whether and by whom an offence has been committed.-- be a failure to mention a fact which is later relied on.

This requires that there both be a fact relied on at trial and a failure earlier to mention it.-- Be a fact which could reasonably be expected to be mentioned.

In this connection the Lord Chief Justice emphasised that the court must examine the circumstances existing at the time of questioning to see if this defendant could reasonably have been expected to mention the relevant issues; the test being subjective to that defendant and not to be construed restrictively.

The Lord Chief Justice has listed factors which could be relevant to that issue.

These include time of day; the defendant's age; the defendant's criminal experience; mental capacity; state of health; sobriety; tiredness; personality and the actual legal advice given to him.

To avoid any difficulties arising over privilege (following Condron) solicitors may wish to avoid giving these factors as reasons for silence but will rather have them recorded on the custody officer to make the record, a solicitor may wish to hand in a written document setting out the relevant factors.

Under Code C para 5.8(b) the custody officer must keep a record of that document.