Silence is not golden

Suspects advised by solicitors to remain silent during police interviews will not avoid adverse inferences being drawn against them by juries, the Court of Appeal has held.

The court made the decision last week in a reference from the Criminal Cases Reviews Commission of an assault case, Howell v R.

Counsel for the defence, Linda Dobbs QC - instructed by London firm Corker Binning - argued that the original trial judge was wrong to direct the jury to draw adverse inference from the defendant's refusal to speak to the police at interview because his solicitor advised him not to.

The European Court of Human Rights held in Condron v UK [2000] Crim LR 679, that where a suspect's silence at interview is motivated by reliance on a lawyer's advice, that is a powerful reason why the jury at trial should draw no adverse inference.

However, Lord Justice Laws said: 'The public interest that inheres in reasonable disclosure by a suspected person of what he has to say when faced with a set of facts which accuse him, is thwarted if currency is given to the belief that if a suspect remains silent on legal advice he may systematically avoid adverse comment at his trial.'

He added that 'it may encourage solicitors to advise silence for other than good objective reasons.'

Rodney Warren, director of the Criminal Law Solicitors Association, said: 'Solicitors now need to be particularly vigilant.

If they have concerns about the level of police disclosure, they should make these clear in the custody record and during the police interviews so that the jury is aware what happened.

They cannot rely on the right to silence.'

Jeremy Fleming