The defendant was charged with robbing a McDonald’s restaurant. He had refused to answer questions when interviewed on arrest, and his solicitor had put on record that this was on the grounds that the solicitor did not think the evidence strong enough. At the trial, the defendant adduced the terms of that advice. The questions which he had declined to answer included enquiries into an apparent sudden increase in wealth, without obvious source, shortly after the robbery, and about his having taken a holiday immediately afterwards in Gran Canaria where he had been photographed in celebratory pose outside the local branch of McDonalds. At his trial he gave detailed explanations both for his spending and for wishing to photograph the McDonalds restaurant. Accordingly the question arose whether an adverse section 34 inference was open to the jury or not.
Held: A defendant who claimed only not to have answered police questions on legal advice, did not waive legal privilege protection until he also asked that no inferences be drawn from his silence. That request operated as a waiver of that privilege, and questions could then also be asked to establish the advice he had been given by his solicitor and its context. ‘The object of these sections was to weaken the protection which criminal defendants had previously enjoyed against the drawing of inferences adverse to them from such failures and refusals in the circumstances specified. Proper effect must of course be given to these provisions. But since they restrict rights recognised at common law as appropriate to protect defendants against the risk of injustice, they should not be construed more widely than the statutory language requires. There is nothing in any of these sections to suggest that Parliament intended in any way to modify the existing law on legal professional privilege.’
Judges:
Lord Bingham CJ, Kennedy, Jackson JJ
Citations:
Gazette 10-Mar-1999, Times 25-Feb-1999, [1999] EWCA Crim 331, [1999] 1 WLR 823, [1999] 4 All ER 43, (1999) 163 JP 337, [1999] 2 Cr App R 176
Links:
Statutes:
Criminal Justice and Public Order Act 1994 34 35 36 37
Jurisdiction:
England and Wales
Cited by:
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 – Regina v Milford CACD 21-Dec-2000
D was charged with three co-defendants with conspiring to import cannabis. He gave a largely no comment interview to the interviewing customs officer, but at trial said that the contacts with his co-defendants were innocent. Since this account had . .
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 – Beckles, Regina v CACD 12-Nov-2004
The appellant had been convicted in 1997 of robbery and false imprisonment. His case was now refererred by the Criminal Cases Review Commission. The defendant had, on advice from his solicitor refused to answer questions at the police station. The . .
Cited – Seaton v Regina CACD 13-Aug-2010
The defendant had been accused of recent fabrication of evidence, having given evidence in court which varied from that given in interview on arrest. The crown had commented on his failure to call his solicitor to give evidence. The defendant said . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Crime, Legal Professions
Updated: 25 October 2022; Ref: scu.135855