The defendants were charged with the supply of heroin. They had declined to answer police questions and it was on the record that their solicitor had advised them not to do so, on the grounds that he considered them unfit because they were displaying withdrawal symptoms; the doctor who examined them had disagreed.
Held: The appeals failed. Where it was in evidence that the defendant had been given legal advice not to answer questions that did not mean that no adverse inference under section 34 could ever be drawn. However, a direction based upon the one appropriate to failure to give evidence ought to be given. On the facts, although the direction had not been as complete as it should have been, the convictions remained safe.
A defendant’s legal privilege attaching to the reasons for taking a particular course in the police station may be set aside on his failure to answer questions if an inference is not to be drawn from his silence.
Stuart-Smith LJ said: ‘Having regard to the view of this Court in Cowan, we consider that it is desirable that a direction on the lines indicated above should be given. There is as much need to remind the jury of the circumstances in which a proper inference can be drawn under section 34 as under section 35.’ The judge must make it clear to the jury that before any adverse inference may be drawn, there has to be a case for that defendant to answer. Silence or a refusal to answer questions is not enough. That cannot be a proper foundation for a conviction.
As to legal professional privilege at a police station, the court set out several propositions: i) Communications between an accused and his solicitor at the police station are privileged.
ii) The defendant can waive the privilege but his solicitor cannot do so without his authority.
iii) If an accused gives as a reason for not answering questions that his solicitor advised him not to do so, ‘that advice, in our judgment, does not amount to a waiver of privilege.’
iv) But if, as will often happen, the defendant wishes to put in evidence not merely the fact that he has received such advice but the reasons for it, that (although the point was not fully argued) ‘may well amount to a waiver of privilege’. The solicitor here could not claim privilege when cross examined about the ability of the defendants to explain themselves to him at the time when he was contending that they were unfit to answer questions; the privilege had been waived by the defendant calling him to give evidence of the reasons for his advice.
v) Where a defendant is accused of subsequent fabrication of the explanation he is now advancing at trial, ‘it is always open to a party to attempt to rebut this inference by showing that the relevant facts were communicated to a third person, usually the solicitor, at about the time of the interview (see Wilmot). This does not involve waiver of privilege if it is the solicitor to whom the fact is communicated; the solicitor is, for this purpose, in the same position as anyone else.’
Judges:
Stuart-Smith LJ, Mantell, Moses JJ
Citations:
Times 04-Nov-1996, [1996] EWCA Crim 1129, [1997] 1 WLR 827, [1997] 1 Cr App R 185
Links:
Statutes:
Criminal Justice and Public Order Act 1994 34
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Cowan and Another CACD 12-Oct-1995
Detailed directions were provided for the judge to give to a jury where a defendant chooses not to give evidence in his defence in the Crown Court.
Lord Taylor of Gosforth said: ‘1. The judge will have told the jury that the burden of proof . .
Cited by:
Appeal from – Condron v The United Kingdom ECHR 2-May-2000
A direction to a jury about an accused person’s silence during police questioning was inadequate to protect the right to a fair trial. The applicants had been advised by their solicitor to remain silent during interview because they were withdrawing . .
Cited – Raymond Christopher Betts, John Anthony Hall v Regina CACD 9-Feb-2001
The defendants appealed convictions for causing grievous bodily harm. During interviw, the solicitor had advised that since the police had failed to make proper disclosure of the evidence, his client should not answer. He now appealed complaining of . .
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 – Benn and Benn v Regina CA 30-Jul-2004
The defendants appealed against convictions for importing drugs. The evidence was circumstantial, including evidence of contamination of paper money with cocaine. New evidnce suggested the original forensic techniques had returned many false . .
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 – 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 . .
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, Crime
Updated: 08 October 2022; Ref: scu.148793