In R v Condron and Condron [1996] The Times, 4 November, the Court of Appeal gave guidance on the approach a court should follow after a solicitor has advised a client to remain silent during interrogation at the police station.

Considerable assistance has been given to solicitors as to how they should advise in the police station.

The court has expressly adopted the approach of Lord Taylor in R v Cowan and others [1995] 4 All ER 939.

The principles established appear to be:-- In normal circumstances, the burden of proof remains on the prosecution.-- The defendant's entitlement to remain silent is his right and his choice.-- An inference from failure to answer questions cannot on its own prove guilt (s.38(3) of the Criminal Justice and Public Order Act 1994 (CJPOA)).-- The tribunal of fact has to be satisfied that the prosecution has established a case to answer before drawing any inferences from silence under s.34 of the CJPOA.-- The tribunal might, however, draw an adverse inference if, despite any evidence relied on to explain the silence or in the absence of such evidence, the tribunal concluded that the silence could only sensibly be attributed to the defendant having no answer or none that would stand up to interrogation.The court also gave valuable guidance on the law of legal privilege.

It established three principles.-- A client does not waive privilege merely by indicating that he is refusing to answer questions on the basis of the legal advice he has received.

Such a bare assertion is unlikely to be consi dered a sufficient reason for not mentioning matters relevant to the defence.-- Privilege is likely to be waived if the client goes on to give the reasons why such advice was tendered.-- If the way the prosecution put its case merely suggests that the defence was a piece of recent fabrication, the defendant is as entitled to call his solicitor to rebut that inference, without waiving privilege, as he is able to call any other witness who could achieve the same purpose.This judgment is consistent with the advice given to the profession by the Law Society since the CJPOA came into force.

A solicitor is under a duty to ensure that there is sufficient disclosure to be satisfied that there is a case to answer.

That disclosure may be in any form and need not necessarily comprise formal statements.

Some judges have pointed out that the only entitlement to disclosure is to an inspection of the custody record.This is much too narrow a view.

Applying the principles of Cowan, a solicitor will wish to ensure that the prosecution can make out a case, as in other circumstances an inference from silence alone will be of no significance.

At the beginning of an interview a solicitor will wish to indicate whether or not a client will answer questions.

Careful consideration will need to be given to whether a reason for such a decision should be given.In preparation for trial, clients will have to be advised how they should answer a question about the reasons for remaining silent at the police station.

They are entitled to refer to the legal advice received and then claim privilege.

This cannot be subject to criticism under s.35 of the CJPOA as it is a 'good cause' for failing to elaborate within the terms of that section.

However, if the real basis for the solicitor's advice falls, for example, into any of the following categories there is no reason why privilege should not be waived.-- The solicitor believes there is insufficient evidence to charge or secure conviction.-- The solicitor cannot advise because of insufficient disclosure.-- The solicitor considers that the client cannot give a fair account of his defence because of some mental or physical impairment.In Condron, the court also gave assistance to advocates as to when in a trial the issue of inferences from silence should be raised.

It will only be in exceptional circumstances that an application should be made to exclude a 'no comment' interview under s.78 of the Police and Criminal Evidence Act 1984.

More normally, the evidence will be given.

Submissions will be made to the court before speeches as to whether the possibility of drawing inferences from silence should be left to the tribunal of factThis update was written by Anthony Edwards, a solicitor with TV Edwards Solicitors.