Criminal law

Inferences from silence - the significance of legal advice

Because of the way in which the provisions of section 34 of the Criminal Justice and Public Order Act 1994 are drawn, the legal advice given to a suspect has always had a significant part to play in deciding whether an inference from silence should be drawn.

There are strong arguments that it is not appropriate to draw inferences from silence if there is clear evidence before a jury that a lawyer has so advised (R v Argent (1997) Crim App R 27).

In Betts and Hall (2001) Crim App R 257, the court made clear that inferences should not be drawn if the suspect may genuinely have relied on the legal advice given by a solicitor.

However, in R v Howell (2003) Crim LR 405, the court appears to have complicated the law by suggesting that a jury may be entitled to conclude that a person has not genuinely relied on legal advice unless the reasoning of the lawyer in question has been disclosed to them.

This will require a wavier of privilege.

In addition, the court held that the solicitor's reasons should, if the reliance is to be accepted as genuine, be based on good objective grounds.

In the case of Howell, the defendant, on legal advice, did not disclose his defence at trial of self-defence because:

- Although there had been good oral disclosure no written statement had yet been taken from the complainant;

- The suspect believed that the complainant would not give evidence against him;

- The police intended to charge the suspect in any event.

The Court of Appeal held that none of those three reasons was a good objective reason for silence.

However, it did identify three good reasons for advising silence.

By implication, it held that if there has not been good oral disclosure of the facts known to the Crown it would be appropriate to advise that no comment should be made.

In addition, that advice will be appropriate where the suspect's condition, such as ill-health (especially mental), confusion, intoxication or shock gives rise to concern.

So also is an inability, on the part of the suspect, generally to recollect events without reference to documents that are not to hand or to other persons who will be able to assist in the recollection of what took place.

Although this case may adjust to the law it is unlikely to change the practice of any defence lawyer.

This involves the balancing of risks.

On the one hand, it is no part of a defendant's role to assist the Crown to build a case against him (Police and Criminal Evidence Act 1984, code C, note 6D).

On the other hand, if there is at trial a case to answer inferences may be drawn from the failure to mention a fact on which the defendant then relies.

It is suggested that a starting point for advice may be obtained by applying the following guidance:

Is the prosecution likely at trial to be able to establish a case to answer by admissible evidence that will then be available? If not, the starting point should be to advise no comment.

If it can, the starting point is to provide answers in a prepared statement or in interview unless by doing so the suspect will do himself more harm than good.

The actual facts of the case will decide the appropriate advice and the final decision is that of the client.

If in doubt the better course is to say nothing.

The case of R v Sargent (2003) Crim LR 275, emphasised the importance of a lawyer checking the likely admissibility of evidence before comment in interview is made on it.

In this case, the Crown had obtained telephone taps under the Interception of Communications Act 1985 (now the Regulation of Investigatory Powers Act 2000.) The telephone intercept could never have been admitted in evidence for either party.

However, the court admitted the suspect's comments in interview on those intercepts.

By Anthony Edwards, TV Edwards, London