The defendant complained that, after acting on his solicitor’s advice to not answer questions when interviewed by the police, the court had allowed the jury to draw inferences from his failure. The police had failed to make such full disclosure of the case against the appellant as they could and should have done. The solicitor’s advice not to answer questions in such circumstances was in accordance with Law Society guidance.
Held: The questions of whether the accused has relied on a fact in his defence and if he has whether he failed to mention it in interview are questions of fact for the jury. The jury is concerned not with the correctness of a solicitor’s advice, but with the reasonableness of the defendant’s conduct in all the circumstances including the advice given.
Lord Bingham CJ said: ‘Subsection (2)(d) empowers a jury in prescribed circumstances to draw such inferences as appear proper. The words which we have emphasised embody a recognition of the fact that section 34 is a section which provides for an exception to the common law rule: and it is of course the case that the 1994 Act does not abolish the entitlement of a suspect to remain silent but only and in a limited way derogates from the common law rule that no adverse inference should be drawn against him when he has, after caution, exercised that right. It is not without significance that the new standard caution includes the words: ‘But it may harm your defence if you do not mention when questioned something which you later rely on in court’. Where s. 34 does apply, the jury have to be told to consider whether the accused – not a reasonable man but the man being tried, with all the ‘qualities, apprehensions, knowledge and advice . . he is shown to have had at the time’.
Lord Bingham CJ set out the six conditions to be met: ‘What then are the formal conditions to be met before the jury may draw such an inference? In our judgment there are six such conditions. The first is that there must be proceedings against a person for an offence; that condition must necessarily be satisfied before section 34(2)(d) can bite . . The second condition is that the alleged failure must occur before a defendant is charged . . The third condition is that the alleged failure must occur during questioning under caution by a constable . . The fourth condition is that the constable’s questioning must be directed to trying to discover whether or by whom the alleged offence had been committed . . The fifth condition is that the alleged failure by the defendant must be to mention any fact relied on in his defence in those proceedings. That raises two questions of fact: first, is there some fact which the defendant has relied on in his defence; and second, did the defendant fail to mention it to the constable when he was being questioned in accordance with the section? Being questions of fact these questions are for the jury as the tribunal of fact to resolve . . The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at that time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant. When reference is made to ‘the accused’ attention is directed not to some hypothetical, reasonable accused of ordinary phlegm and fortitude but to the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time.’
Lord Bingham LCJ
[1996] EWCA Crim 1728, [1997] 2 Cr App R 27, Times 19-Dec-1996, [1997] Crim LR 449
Bailii
Criminal Justice and Public Order Act 1994 34(2)(d), Police and Criminal Evidence Act 1984 78
England and Wales
Cited by:
Cited – Regina v Gill CACD 21-Jul-2000
When a defendant was silent, it was necessary for the court to be especially careful to give precise and accurate directions on the effect of such silence as to the drawing of adverse inferences. Having answered questions on some aspects, it was not . .
Cited – Regina v McGarry CACD 16-Jul-1998
Where the judge decided that no inference could be drawn from the defendant’s silence, because of the absence of facts which could have been mentioned, he had a duty positively to warn the jury not arbitrarily to draw adverse inferences from the . .
Cited – Regina v Webber HL 22-Jan-2004
The defendant complained that the judge had given a direction under s34 even though his counsel had only put matters to witnesses for the prosecution.
Held: A positive suggestion put to a witness by or on behalf of a defendant may amount to a . .
Cited – Petkar and Farquar, Regina v CACD 16-Oct-2003
The defendants appealed their convictions and sentence for theft. Whilst employed by a bank thay had arranged for transfers to their own account. Each blamed the other. They appealed on the basis that the direction on their silence at interview was . .
Cited – T v Director of Public Prosecutions Admn 10-Jul-2007
Appeal by case stated against conviction of having secured entry to premises by violence. Inferences to be drawn from defendant’s silence at police interview. The defendant complained that the magstrates should have set out clearly what inferences . .
Cited – Fitzgerald, Regina v CACD 6-Mar-1998
The defendant appealed against his conviction for robbery. At interview, his solicitor had explained his failure to answer questions by reference to the involvement of others, but in terms which treated this itself as an admission.
Held: The . .
Cited – Regina v Roble CACD 21-Jan-1997
The defendant appealed against his conviction for wounding with intent. He had answered ‘no comment’ in the police interview, but claimed self defence at trial. The court considered what note should be taken of the solicitor’s evidence of his advice . .
Cited – Black v Regina CACD 17-Jul-2020
Disclosure Sufficient to Support Inference
The court was asked whether sufficient evidence had been adduced about the strength of the prosecution case at the time of interview, to permit an adverse inference to be drawn from the failure to mention specific facts pursuant to section 34 of the . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Police
Leading Case
Updated: 01 November 2021; Ref: scu.149392
