For all who advise in police stations, 10 April was a significant date.

The new law contained in the Criminal Justice and Public Order Act (CJPOA) 1994 in relation to inferences from silence came into force on that date, as did new codes of practice made under the Police & Criminal Evidence Act (PACE) 1984.However, it is important to set these changes in context.

The role of the defence lawyer is clearly identified by the new codes.

Code C, note 6D confirms that 'the solicitor's only role in the police station is to protect and advance the legal rights of his client.

On occasions this may require the solicitor to give advice which has the effect of his client avoiding giving evidence which strengthens the prosecution case'.Inferences for silenceThe CJPOA does not change the duty on the prosecution to prove its case to the criminal standard by evidence which is available and admissible at court.

It is only if the precise statutory pre-conditions are met that inferences from silence may be considered.

Solicitors cannot be expected to advise in a vacuum.

They will have to negotiate the disclosure of information, and any failure to disclose may itself justify clients exercising their right to silence.

Solicitors will at least now be able to obtain access to the custody record (code C para 2.4).In the police training material on investigative interviewing it is confirmed that 'officers should be alert to the sort of circumstances which could cause a solicitor concern and might lead to the suspect being advised to remain silent.

This might include where you have told the solicitor insufficient about the evidence for him/her to be able to properly advise the suspect or where it appears weak or lacking in certain elements.

The solicitor may also be concerned if documentation is needed to recall events and it is not available or if the suspect is inarticulate, unintelligent or not in a fit state to explain events adequately'.The need to identify the evidence is particularly important because of s.38 of the CJPOA which contains provisos to all the sections under which inferences might otherwise be drawn.

Ss.38(3) and 38(4) confirm that an inference alone will never be sufficient.On the other hand solicitors will also remember that s.37(7) of PACE prevents detention for questioning where a custody officer determines that there is sufficient evidence to charge.S.38(6) of the CJPOA also provides that all the courts' powers to exclude evidence continue in full effect.

Thus solicitors will continue to be able to rely on the provisions of ss.76 and 78 PACE.The first inference from silence under s.34 is in relation to an 'ambush defence', where a person raises at sometime after charge an issue which might have been raised earlier.

However, there are a series of pre-conditions which must be satisfied before the tribunal of fact could be invited to consider this inference.

The person must either have been questioned under caution or been charged.Following an arrest questioning under caution should normally only take place at a police station, because code C para 11.1.A.

provides that the questioning of a person regarding his involvement in a criminal offence which is required to be carried out under caution is an 'interview'.

At that interview para 11.2.A.

provides that the interviewing officer shall put to a suspect any significant statement or silence which occurred before his arrival at the police station.

However, a significant statement or silence is one which appears capable of being used in evidence against the suspect, and solicitors will wish to intervene if an officer seeks to legitimise earlier improper behaviour in this way.It should be noted that in C (a minor) v DPP [1995] Times Law Reports, 17 March, the House of Lords indicated that the inference under s.34 of the CJPOA could not assist a prosecutor in proving guilty knowledge under the re-instituted doctrine of Doli Incapax.An inference under this section may only be drawn in relation to a fact which, in the circumstances existing at the time, the accused could reasonably have been expected to mention.

Solicitors will therefore wish to note or explain circumstances making it unreasonable.This may apply in a complex enquiry or where there is as yet insufficient information about the offence, or where full statements have not been taken.

It will apply if the suspect is suffering from some form of disability or mental disorder, or is unwell, even if that illness is self-induced through drink or drugs.This section applies to questioning by constables, customs officers, and any other person charged with the duty of investigating offences.The requirement to consider some response to charge will mean that solicitors have to attend at police stations far more often than has been the case to date.

Where there has been a no comment interview but there is to be a response to charge it will be necessary to remain to ensure that an accurate record is made.

When an interview does not take place it may be important that a short comment is made, for instance to indicate that actions were taken in self defence.

It will be difficult for police officers to raise issues about such a comment because of the continuing provisions of code C para 16.5.The second and third inferences can be drawn under ss.36 and 37 of the Act, and these inferences can add to the strength of the prosecution case.There are again, however, a series of pre-conditions about which solicitors will wish to satisfy themselves before there is any risk of an inference under these provisions.

S.36 applies where a person is arrested by a constable (which includes a customs officer) and there is on his person or in or on his clothing or footwear or otherwise in his possession or in any place in which he is at the time of his arrest any object, substance or mark, or there is any mark on any such object and a constable reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence, and the constable informs the person arrested that he so believed and requests him to account for the presence of the object, substance or mark and the person fails or refuses to do so.Similarly s.37 applies where a person arrested by a constable (or customs officer) was found at a place at or about the time of the offence for which he was arrested is alleged to have been committed, and a constable reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence, and the constable informs the person he so believes and requests him to account for that presence and the person fails or refuses to do so.In each case it is the constable who must give the explanation and this cannot be delegated to the solicitor.

Assistance is given to the officers by the new codes.

For an inference to be drawn the interviewing officer must first tell the suspect in ordinary language (a) what offence he is investigating; (b) what fact he is asking the suspect to account for; (c) that he believes this fact may be due to the suspect taking part in the commission of the offence in question; (d) that a court may draw a proper inference from his silence if he fails or refuses to account for the fact about which he is being questioned; and (e) that a record is being made of the interview and may be given in evidence if he is brought to trial.

Solicitors will wish to use these paragraphs as a check list, and may wish the officer to ask the client specifically whether he understands the provisions.Solicitors will also wish to ensure that there is sufficient evidence to support the reasonableness of the view being formed by the constable about the presence of the object, substance or mark or about the presence of the person at the relevant place and time.

If there is insufficient evidence at that time solicitors may wish to suggest that the evidence should be obtained before the issue is pursued with the particular suspect.Identification proceduresChanges to PACE code D will require that the solicitor present at any identification procedure should be given details of the first description of the suspect by each witness who is to attend the procedure.

A new annexe is also introduced to deal with group identifications.Significant changes are made by the CJPOA in relation to body samples.

At the advice stage the most important change is in relation to a request for an intimate sample.

A superintendent will now be able to authorise such a request if he has reasonable grounds to believe that the sample will tend to prove or disprove the suspect's involvement in a recordable offence.

Consent will still be required before the sample can be taken, but if it is refused then the provisions of s.62(10) of PACE will apply and an inference could be drawn which could be added to other evidence.Solicitors will however, have to remain alert to ensure that there is such other evidence before advising their client to give consent in these circumstances.

The quality of the other evidence may improve with time, and an initial refusal have to be reconsidered in the light of the new evidence.Recordable offences are any offences which carry a sentence of imprisonment on conviction and non-imprisonable offences under s.1 of the Street Offences Act 1959, s.25 of the Road Traffic Act 1988, s.1 of the Malicious communications Act 1988, and s.139(1) of the Criminal Justice Act 1988.An intimate sample is a dental impression or a sample of blood, semen or any other tissue fluid, urine or pubic hair or a swab taken from a person's body orifice other than the mouth.BailIf a person has at any time been convicted of murder, attempted murder, manslaughter for which they were imprisoned, rape or attempted rape, and they are again charged with any of those offences they will not be able to obtain bail in the police station or at court.

There is no discretion and conviction is widely defined for these purposes.Under the provisions of s.27 CJPOA custody officers will be able to grant conditional bail, as well as grant bail with a surety or security as at present.

The grounds on which a police officer may detain someone in custody will be amended to bring them into line with the provisions of the Bail Act 1976.An officer may only impose conditions to ensure that a person attends at court, does not commit further offences, or does not interfere with the course of justice.

The only limitations on the conditions that are available are a prohibition on the imposition of a bail hostel requirement, or the obtaining of certain medical information.Having granted conditional bail a defendant will be able to seek a variation in the conditions, either by applying again to a custody officer at the same police station, or by application to the court.

At the police station the only means of remuneration under the legal aid scheme for obtaining a variation would appear to be a green form, but it should be noted that whilst a police officer can vary the conditions, only a court can withdraw the bail once granted.