nm1152: the second handout is called [0.8] er Silence As Proof [0.6] and is a 
seminar handout [0.8] er [0.2] for [0.5] er the week after [0.9] this one [1.1] 
er [1.0] do bear in mind this week that the two er [0.2] seminars on silence 
are incremental [0.6] as you know this week we have a a working group [0.5] er 
looking at some of the issues and some of the evidence [0.6] er [0.6] er and 
really addressing the question of whether [0.7] er for all sorts of evidential 
and process reasons we should be treating silence as proof [0.6] and whether we 
should be putting accused persons under pressure to [0.3] speak either in 
interview [0.4] or in the pl-, or or in court [0.9] er [0.5] the [0.5] next 
seminar for the week after this one [0.5] er as you'll see is very very 
practical [0.7] er [0.3] it r-, [0.2] really requires er [0.4] the individuals 
in the seminar group to adopt the role of a legal adviser [0.5] er and to 
tackle three rather different [0.5] er practical problems of advice [0.2] or 
action [0.7] so [0.5] do bear in mind the the two are incremental so [0.4] make 
sure you get good value out of this week's working group as a [0.3] a precursor 
[0.6] to er the 
seminar to come [1.0] right [0.2] er ha-, has the er seminar sh-, er lecture 
sheet got round so far 
ss: no [laughter] [0.7] 
nm1152: right w-, where's it got to [5.2] who who hasn't who's got one [1.0] 
sf1153: [0.3] who has got one [0.2] 
nm1152: yeah who has got one [1.8] so it's got down this far [0.9] are there 
any spares [1.4] 
ss: yeah here here here [0.2] 
nm1152: ah there are 
ss: oh yeah [laughter] 
nm1152: okay yeah [0.2] could you could you sort of pass those along [0.8] are 
there any other pockets of spares 
sf1154: 
nm1152: or pass them down or [0.3] 
ss: [0.5] 
nm1152: just keep ca-, passing them down till [6.5] is this all right er [0.2] 
namex er [1.4] er you'll cut this bit off the beginning will you 
om1155: that's right yeah [laughter] 
nm1152: yeah shall i 
om1155: [0.5] i can cover you 
nm1152: promise me you will yeah [0.7] yeah [1.1] er if i pi-, ap-, [0.2] 
appear a little er stage-struck it's because of the er [0.4] the cameras [1.7] 
right have the handouts they're still coming 
nm1152: right [0.8] er [0.6] after that false start [1.8] after that [0.8] 
after that false start [0.6] let's proceed [0.8] er [0.2] we're going to talk 
today about [0.3] the [0.2] er [0.2] new provisions in English law [1.1] er 
under which [0.6] er inferences [0.3] er can be drawn [0.5] from the fact that 
the accused person [0.5] has been silent [0.3] at some stage of the criminal 
process [1.2] er [0.2] the [0.6] er [0.5] starting point really for our 
consideration of what the law is today [0.4] is The Criminal Justice and Public 
Order Act of nineteen-ninety-four [1.0] er which er as you should know by now 
is [0.2] closely modelled on [0.6] the er Northern Irish [0.3] er legislation 
which is the Criminal er [0.7] Procedure [1.0] er or or it [0.4] the Northern 
Ireland Criminal er [0.2] Procedure Order of nineteen-eighty-eight [1.9] er [1.
3] we're going to look at the individual provisions of the Criminal Justice and 
Public Order Act [0.3] er and focus in on the different stages [0.5] er at 
which silence can be treated as evidence [1.0] er and the first er [0.2] stage 
[0.2] is [0.3] in relation to silence [0.5] during [0.3] a formal police 
interview [1.2] er which is dealt with by section thirty-four of the act [1.7] 
if we ask ourselves well what is section thirty-four all about [1.3] think 
we're aware by now it's [0.4] er to prevent ambush defences [1.0] er to prevent 
the possibility of the defendant raising an unexpected [0.3] defence [0.3] at 
trial [0.8] which might wrong-foot [0.2] the prosecution [0.7] and which might 
lead to an unmerited acquittal [1.5] er [1.1] so it it it does that by really 
putting the the defendant under pressure to speak [0.5] in the hope that er [0.
4] if he's going to raise a defence it will be 
raised at er [0.3] i-, in the interview [0.9] er secondly [0.7] er the [0.8] 
procedure is [0.2] designed to encourage more defendants to speak [1.0] er and 
that of course is [1.0] not simply for the purpose of [0.3] er [0.4] finding 
out what any defence might be [0.8] but also i think that there is an 
assumption [0.7] that once a defendant or suspect is speaking [0.8] er there's 
more likelihood of getting [0.2] either damaging admissions [0.6] or some [0.2] 
confession [0.3] for him [1.1] and that of course is [0.2] er linked [0.6] to 
er [0.2] some faith [0.8] in the interviewing skill of the police [0.6] in as 
it were breaking down [0.7] er a story which the defendant might raise [0.6] er 
as we saw last week i think [0.6] er [0.2] all the empirical evidence suggests 
the police aren't really actually very good at that [0.8] but there's no doubt 
about it that this is one of the purposes of the legislation [0.7] get the 
suspect to speak [0.6] the idea is once he's speaking [0.7] even if he's [0.2] 
trying to raise a false defence it could be broken down [1.6] i'm not going to 
raise section thirty-four [0.3] er i've set it out on the sheet you can have a 
look at it [0.6] er what i would like to do 
is to really [0.2] er [0.4] pinpoint some of the key aspects of it [2.3] er [2.
4] first of all er it applies only [0.3] in relation to [0.4] er a defendant 
who raises a defence in court [3.5] so the starting point is the defendant who 
puts up some defence [0.8] er and that probably means [0.3] something more [0.
2] than simply putting the prosecution to proof [1.2] er [0.4] a-, as you know 
one [0.5] possible way of defending yourself in court [0.6] is just to allow 
your lawyer or counsel [0.4] to attack the prosecution evidence [0.7] to [0.5] 
test it for weaknesses [0.9] er [1.7] if that's all the defendant does if he 
doesn't rely upon any particular facts [0.3] in court himself if he doesn't 
bring forward any evidence [0.7] er then [0.2] section thirty-four won't apply 
[1.2] second retat-, requirement is that [0.7] er [0.7] or is that [0.6] at any 
time before he's charged [0.8] er on being questioned under caution by a 
constable [1.1] where that constable is investigating an offence [0.9] er the 
defendant has failed [0.2] to mention [1.5] er [0.3] some facts [1.1] or fact 
[1.0] which he [0.3] later relies upon in his defence [0.6] there must be a 
defence raised [0.4] there must be a failure to mention that [0.8] er [0.3] at 
[0.4] interview formal 
interview under caution [1.2] er or alternatively [0.2] a failure to mention [0.
5] er the relevant fact when the defendant is actually [0.2] charged [1.0] the 
two possible relevant stages [0.4] er where the defendant might be silent [0.8] 
and in in the course of interview [0.6] later on when he's informed [0.2] that 
he will be charged [2.3] er [2.0] in those circumstances inferences can be 
drawn against the defendant [3.1] provided [0.7] that [0.3] in all the 
circumstances of the interview [0.6] it would have been reasonable [0.7] for 
him to mention [0.2] the fact [0.6] which it is alleged [0.5] er he has failed 
to mention [4.8] okay well that's an outline of section thirty-four [0.9] what 
can we say about it [0.9] er [0.5] well [0.4] the inferences that can be drawn 
under this section [1.2] er can be drawn in a number of circumstances they're 
all listed in section thirty-four i've picked out two [0.7] under s-, two-C [0.
6] er where the court or jur-, er the court is determining [0.3] whether there 
is a case to answer [0.8] and under D [0.6] er where the where the court or 
jury is determining [0.5] whether the accused is guilty of the offence charged 
[0.7] so the suggestion there is that [0.6] er [0.2] inferences can support [1.
0] 
the first stage [0.3] is there a case to answer [0.5] and also support a 
finding of guilt [1.8] er [1.8] there's one oddity here [0.7] er it had 
certainly been the intention [0.5] of the legislation in nineteen-ninety-four 
[1.0] that [0.4] er inferences from silence [0.6] er [0.2] might have [0.3] er 
operated not only at trial [0.9] but also at [0.4] the earlier stage of 
committal proceedings [1.2] er the stage at which [1.1] er [0.5] traditionally 
the court has satisfied itself [0.6] that there is sufficient evidence [0.5] 
for the defendant to be put on trial [1.3] er and it was certainly the 
intention and the act actually allowed for that [1.4] however [0.2] er in 
nineteen-ninety-six er the nature of committal proceedings were changed [0.8] 
committal proceedings were streamlined [0.6] by the Criminal Proceedings and 
Investigations Act [0.8] er [0.4] and [0.4] under the new streamlined form of 
committal proceedings [0.9] only the prosecution [0.5] gives its evidence [0.8] 
er normally in documentary form [1.2] there's no scope for the defendant to 
give evidence at committal proceedings [1.2] er and there's no scope for the 
defendant to [0.6] question [1.0] er [0.6] items of 
prosecution evidence [0.6] er or to cross-examine prosecution witnesses [1.2] 
so if you like the adversarialism [0.4] has been taken out of committal 
proceedings in nineteen-ninety-six [0.6] very little scope for the defence [1.
0] the effect of that is of course that at committal proceedings [0.4] er 
there's no way [0.6] the defendant can [0.2] rely upon a [0.3] er can raise a 
defence [0.8] er and rely upon facts in doing so [1.0] defendant isn't allowed 
to do anything much at committal proceedings any more [0.5] as a result [0.5] 
er whereas i think er before nineteen-ninety-six [0.6] er it would have been 
possible to rely upon [0.2] a possibility of an inference against the defendant 
[0.7] er [0.4] in order to [0.8] indicate that there was sufficient evidence to 
put him on trial [0.6] that's been swept away and inferences will be relevant 
only [0.7] er a-, in the court of trial [2.1] er [0.7] second point to me-, 
notice is that [0.2] although [0.4] i think drawing an inference [0.6] er 
clearly means [0.3] treating the silence as evidence [0.9] section thirty-eight-
three [0.5] of the nineteen-ni ninety-four act [0.5] does make clear [0.6] it's 
necessary to do so [0.7] that [0.4] you can't sustain a conviction [0.8] purely 
[0.4] on the basis of [0.2] an inference from silence [1.4] er and that makes 
sense in a way [0.3] i mean [0.7] it would be very odd wouldn't it if er [1.3] 
when you got to trial the only [0.8] bits of the prosecution case that stood up 
were inferences [0.4] from the fact that the defendant has said nothing [1.6] 
er and section thirty-eight-three says you cannot [0.2] be convicted [0.5] 
purely on the basis of an inference [0.5] from the fact that [0.5] the 
defendant was silent under accusation [0.8] there is however one oddity in 
section thirty-eight-three [1.5] does tell us [1.1] that [0.7] there can be no 
[0.2] conviction solely [0.2] on the basis of [0.2] an inference [0.7] singular 
[1.3] and i suppose at least technically [1.0] that would leave open the 
possibility [0.7] er that a defendant [0.2] might be [0.2] found guilty [0.9] 
er on the basis of multiple inferences [1.7] er [0.2] when we look at this 
legislation [0.9] er [0.2] an inference can be drawn [0.9] from the fact that 
you [0.4] don't raise your defence in the police station [0.5] under section 
thirty-four [1.1] but also inferences can be 
drawn [0.2] as we shall see [1.3] er from your failure to account [0.5] for the 
bloodstains on your clothes [0.6] or from your failure to account [0.2] for the 
fact that you were at the scene of the crime [1.0] and inferences can be drawn 
[0.6] er [0.5] where you'd fail to er [1.1] give evidence testify in court [0.
8] well [0.8] section thirty-eight-three doesn't say that [0.3] er [0.7] it's 
impossible for you to be convicted on if you like a collection of inferences [0.
4] from progressive silence [0.4] throughout the process [0.5] in the police 
station at charge [0.4] and at trial [0.4] having said that it's er [0.4] as i 
said almost inconceivable [0.6] er that a judge would allow a [0.4] a case to 
go to the jury where [0.8] the only substantial evidence was inferences [0.7] 
er [0.5] and one would hope that juries would [0.4] would have the good sense 
if you like if they discounted other evidence [0.5] not to rely simply on the 
fact that [0.4] the defendant had failed to answer [0.6] charges against him or 
her [2.0] okay well [0.7] er [0.5] the whole edifice of er [0.8] inferences 
from silence in the police station [0.5] is built upon [0.7] er [0.4] a form of 
words [0.8] which must be spoken 
to the defendant [0.9] er before he's questioned [0.4] which is called a 
caution [1.2] er the old caution which er [0.9] is er [1.2] er er sanctified in 
numerous er [0.6] police and detective stories et cetera [1.0] was along the 
lines you don't have to say anything [1.0] er but i warn you if you do anything 
you do say may be taken down in evidence [1.0] very familiar sort of wording 
for those of us who used to watch Dixon of Dock Green and Z Cars [1.0] 
[laughter] er [2.7] that caution though had to go and the reason it had to go 
was of course [0.8] er if we are going to allow inferences from silence [0.8] 
it would have been a bit of a trap wouldn't it [0.7] we actually said to 
defendants [0.2] you don't have to say anything [1.2] er [0.6] with the 
defendant said okay i'll i won't [0.3] and then found that they were subject to 
inferences [0.7] subject to their [0.3] silence being treated as evidence that 
would have been unfair and a trap [0.7] er accordingly er when the new 
legislation came into force in nineteen-ninety-five [0.7] er [0.6] a new 
caution was drafted [0.7] er and included in the er [0.5] code of practice [0.
5] relating to interrogation [0.8] 
er [0.3] which is er [0.8] made by the Home Secretary under the Police and 
Criminal Evidence Act PACE [1.7] and er the new caution [0.5] says this [0.6] 
you don't have to say anything [0.7] but it may harm your defence if you do not 
mention when questioned something which you later rely upon in court [0.8] 
anything you do say may be given in evidence [1.5] er [0.3] well [1.0] er 
[sigh] [0.6] a lot of people have queried to what extent [0.5] er that caution 
[0.5] makes sense to ordinary people [0.9] er [0.9] there have been studies 
done with A-level students that showed that only sort of forty per cent [0.6] 
fully understood it [0.6] and of course A-level students are likely [0.2] to be 
[0.7] er of a higher er average intelligence than than defendants or suspects 
[1.0] nevertheless these words er must be er [1.2] oh i hate it when people 
start to leave [0.7] oh [0.4] [laughter] you're not [0.6] changing seats [0.6] 
that's okay [5.4] [laughter] just teasing me [laughter] [2.3] yes what was i 
talking about [laughter] oh the caution yeah [0.8] er [0.9] so there really are 
questions about [0.2] what this means to defendants [0.4] particularly er if it 
is er run off at high speed [0.6] er by a a police officer [0.2] who's who's 
rather bored with having to 
recite these words [0.6] nevertheless the the caution must be given [1.6] er 
the [1.3] first case in which section thirty-four was tested [0.5] er was er an 
interesting case called Condron and Condron [1.5] er and [1.8] er i-, i-, it's 
a handy case to to think about in terms of its own facts [1.0] er [0.7] Condron 
and Condron [0.4] er [0.9] were a [0.5] husband and wife i think [0.7] er who 
were charged with dealing in [0.8] drugs [1.3] heroin and heroin substitutes [0.
9] er [0.5] they had a a flat [0.9] er [0.2] the balcony of which [0.2] was 
closely adjacent [0.6] er to the balcony of another man [1.2] who was also 
charged [3.4] the [0.2] police [0.3] er [0.8] story [0.7] following 
observations [0.4] er on these flats [0.9] was that [0.4] drugs were stored [1.
0] in their neighbour's flat [2.0] er but that Condron and Condron were the [0.
7] front people who actually did the dealing with customers in these drugs [1.
5] er [0.4] and the police alleged that on a number of occasions people had 
gone [0.2] knocked on the Condrons' door [0.7] would enter [0.7] er the police 
would then witness [0.6] er some form of exchange over the balconies [0.8] er 
which the police believed were drugs passing from the other flat [0.4] which 
were then sold [0.3] to the [0.3] customer [1.8] er [1.0] and er 
the police as well as these observations [0.7] er had some evidence there was a 
certain amount of drug taking gear [0.8] a small amount of drugs found in the 
Condrons' flat [0.7] and larger quantities of drugs found in their neighbour's 
flat [1.7] well [3.7] what happened in this case well [0.6] er [0.5] the 
Condrons were taken [0.5] to a police station [0.9] er and er asked for legal 
advice [0.4] legal adviser attended [0.7] had a quick chat with them [1.0] er 
[0.2] they indicated to him that they were both er addicted to drugs [1.1] er 
and that they were having a bad time because of withdrawal [1.1] and [0.4] the 
legal adviser [0.2] said well my advice to you is that you're not fit to be 
interviewed because of the effects of withdrawal [0.8] er don't say anything [1.
7] er the police called the police surgeon [0.6] or the Force Medical Examiner 
as er [0.5] they're known in some forces the F-M-E [1.1] the F-M-E turned up [0.
7] and he said well in my view these people are fit to be interviewed they [0.
8] they can understand the questions being asked et cetera [0.9] and so the 
police carried on to interview them [0.5] er but the Condrons 
exercised their right to silence [2.1] so here we have it [1.4] there's some 
medical problem [1.3] legal adviser's considered it [0.6] and the legal 
adviser's [0.6] given advice to [0.5] exercise the right to silence [1.4] er [0.
8] the Condrons were were charged [0.4] er and were [0.3] convicted [0.7] of 
drug dealing offences [1.5] and as well as relying upon [0.7] er the positive 
evidence in the case of which there was quite a lot [1.1] er [0.4] the [1.6] 
prosecution also [1.3] er asked the [0.5] court [0.3] to draw inferences from 
the fact [0.8] er that when various facts [0.2] like er [0.8] you know what was 
happening when things were passing back and forth between the balconies [1.0] 
you know why have you got some drugs in your house all this sort of thing [0.3] 
when they were asked those questions er in the police [0.4] station [0.5] they 
answered nothing [0.6] but when they were asked similar questions in court [0.
6] they came up [0.4] the two of them with a coherent [0.4] er defence indeed 
it was a defence which [0.6] er [0.2] by that stage was if you like run by all 
three individuals all three were entirely consistent [1.0] the defence at trial 
[0.9] er was fairly 
straightforward [0.8] it was that the Condrons [0.2] were themselves drug 
takers [0.8] er and they had supplies of drugs and they had er [1.3] 
paraphernalia for injecting themselves [0.5] and that explained why there was 
drug taking equipment in their flat [1.5] er [0.6] and they also said that they 
were friendly with this er neighbour of theirs [0.6] and periodically when they 
er [0.8] ran out of sugar [0.2] or tea bags they [1.4] [laughter] popped onto 
the balcony attracted the neighbour's attention and the the neighbour 
generously [0.3] passed over a little packet of tea bags or [0.2] sugar or 
whatever was needed [1.0] so er [1.6] there was an explanation for the drugs in 
the house [0.9] which didn't include drug dealing [0.5] and there was also er 
an explanation for these little exchanges over the balcony [2.1] er so clearly 
they were raising a defence in court it was something which hadn't been 
mentioned at police interview [0.5] prosecution said let's draw inferences [0.
8] er and the trial judge [0.7] er against defence objections [0.2] told the 
jury that inferences could be drawn [2.0] well [0.5] er they were convicted and 
the convictions 
were tested on appeal [1.2] er and obviously [1.6] the case is quite an 
interesting one isn't it [0.7] it raises a number of questions [1.0] er [2.2] i 
suppose the biggest is h-, er [2.3] could it ever be said [1.4] that [0.7] it 
would have been reasonable to mention [0.8] er a fact [0.7] in police interview 
[1.2] when that [0.3] when to do so was contrary [0.7] to the advice [0.2] of 
[0.2] the legal adviser [2.3] er [0.2] particularly since the at least whether 
the [0.7] police doctor disagreed or not at least we know why the adviser or 
why the adviser said [0.6] er this advice was given [1.2] er [0.6] critical 
case in a way isn't it [1.0] er [0.7] on the one hand we might [0.2] say well 
[1.5] suspect goes into a police station [1.5] the moment they get to the 
police station they're given certain rights they have certain entitlements [0.
4] one of which is to have a lawyer [1.2] somebody who's [0.8] supposed to be 
highly professional and is there to protect their interests [0.4] and indeed is 
paid for by the state paid for by legal aid so [0.4] you get in there [0.2] do 
you want a legal adviser yes please [0.9] what is the legal adviser for he's 
there to protect your interests [1.1] does 
seem a bit odd doesn't it if we [0.7] allow for the legal adviser by law we s-, 
[0.8] tell the defendant [0.3] you can rely upon this [0.2] this character the 
legal adviser [1.2] and then when the legal adviser's advice is given it would 
seem very odd if we then said well hard luck [0.6] it was bad advice [1.2] 
because er [0.3] he may have told you to [0.2] be silent but er hard luck we're 
going to treat your silence as evidence against you [1.1] very strange if the 
defendant was led into that trap [1.7] on the other hand er looking at it from 
the alternative perspective [1.1] er [0.2] the purpose [1.1] of changing the 
law in nineteen-ninety-four [1.1] was to put pressure on suspects [0.3] to 
speak at interview wasn't it [2.1] now [0.8] if [0.9] any legal adviser [1.5] 
could simply go into [0.8] er the police station [0.8] advise the client to say 
nothing [0.9] in the certain knowledge [0.2] that by doing that [0.5] the 
client would be insulated [1.1] from adverse inferences [0.9] would be 
insulated from the adverse effects of being silent [0.7] er i-, [0.2] if a 
legal adviser could do that [0.4] many would say well there's very little 
having the legislation [1.5] 
if you like the the [0.3] legal adviser can negate the [0.5] could be able to 
negate the effect of the legislation [0.4] simply by advising silent [0.6] fi-, 
silence [0.4] i think that was really the dilemma [0.3] which the court had to 
deal with [1.5] er [0.4] the approach of the court [0.9] er i-, in a very er [0.
4] important judgement given by er [0.6] Mr Justice Stuart Lord Justice Stuart-
Smith [0.8] er [0.9] was to say that [1.1] er [0.7] the [0.5] lawyer's advice 
did not [0.3] preclude [0.2] the drawing of inferences [1.2] er [1.0] the court 
pointed out that i-, although the advi-, lawyer had advised [0.3] silence on 
medical grounds [0.9] er the police doctor had made known [0.5] his view [0.4] 
the [0.6] Condrons were fit [0.9] and that was made known to the Condrons [0.7] 
and to the [0.2] legal adviser so that Condrons would have been aware that the 
force [1.0] surgeon the doctor [0.2] medical expert was saying they were fit [1.
7] er [0.9] and [0.8] the [1.4] the the court was very reluctant to a-, allow 
the er lawyer's advice [0.2] to be a way of preventing [0.4] er [0.2] 
inferences being drawn [0.4] and actually used the phrase that [0.6] er if that 
was allowed to prevent inferences that would drive a coach and horses [0.6] 
through the nineteen-ninety-four 
act [1.1] so very very keen [0.4] if you like to [1.7] enforce [0.6] er this 
new system of trying to put pressure on defendants to speak [2.0] er [0.6] the 
[1.0] court [0.9] er also [1.1] er had to er [1.8] deal with er [0.6] er 
another issue [1.1] which was [0.2] well [2.7] if [1.3] the [0.6] if the 
defendant wants to rely upon legal advice [1.2] if the court [0.3] won't accept 
it as precluding inferences [1.1] just as a flat statement my lawyer advised me 
[0.9] not to say anything [0.4] wo-, wouldn't accept that [1.8] could it be 
possible for [0.4] er lawyer [0.2] or the client to give greater details about 
precisely why legal advice was given [1.9] if you like [0.3] could the court 
get into that [0.3] collateral issue of [0.3] why was the advice given [1.3] 
court said yes [1.3] er [0.4] what the court said was this [0.7] they said that 
[0.6] er [1.0] legal advice could be at least a factor to be considered by the 
court [0.5] in deciding whether or not it was reasonable to draw inferences [1.
2] but [0.3] if a defendant wanted to rely upon legal advice [0.8] er it would 
be necessary [0.7] to go further than to give a bald statement [0.5] this is 
what my lawyer advised me [0.6] er and to actually give details of why the 
advice was given [1.6] now [0.9] there is a 
bit of a problem there [1.0] which is of course [1.1] we normally think of the 
discussion [0.8] between [0.4] legal adviser and client [0.7] as being subject 
to what we call legal professional privilege [1.9] and legal professional 
privilege [0.9] er [0.6] is a [0.4] a right [1.5] and the person who's been 
given advice [1.2] to have the [0.7] nature of the advice [0.9] and indeed [0.
5] things passing between the adviser and the client [0.4] kept [0.2] secret 
and confidential [1.9] so what the court are really saying is well [0.7] er [0.
8] if you want to rely upon legal asvi-, as-, [0.3] legal advice [0.4] er as a 
basis for saying that inferences shouldn't be drawn [1.0] you must tell us what 
the nature of the advice was [0.9] er and the court [0.9] accepted that that 
would involve waiving [0.7] legal professional privilege [1.3] and rather 
interestingly the court also made it clear that [1.1] once legal professional 
privilege had been waived [1.2] er [0.3] then [0.5] it it was waived completely 
[1.1] er th-, the lawyer and the client couldn't agree [0.3] for instance [0.5] 
as to which bits [0.5] of the advice session [0.7] they would tell the court 
about and which bits they would keep secret [1.3] 
what was suggested in in this case [0.7] er Condron and Condron [0.5] and in 
fact confirmed in a later case called Roble [0.6] R-O-B-L-E [0.6] er was that 
once [0.9] privilege had been waived [0.7] then if you like the lawyer and the 
client [0.2] be cross-examined about [0.3] everything [0.5] that passed [0.2] 
between [0.4] lawyer and client [1.7] very unusual [0.2] a very surprising 
decision in some ways [0.3] er [1.6] the notion of legal professional privilege 
h-, [0.2] i-, is is one which is [0.4] dear to the hearts of many lawyers [1.0] 
er in a and in a case called Derby Justices fairly recently the House of Lords 
[0.7] er upheld legal professional privilege [1.0] stating that [0.6] er if you 
like it was [1.4] of paramount public interest [0.8] that [0.6] individuals 
charged with crime should be able to consult lawyers [0.4] to get advice [0.5] 
and [0.3] be confident that they could be completely frank with their lawyer [1.
7] er [2.1] in the safe knowledge that what was said would not be disclosed [0.
6] rather interesting this earlier case the House of Lords was saying yes we 
will uphold legal professional privilege [1.3] er [0.5] in Condron and Condron 
[0.5] the [0.2] the Court of Appeal is saying [0.5] 
well [0.9] if you want to rely upon legal advice you've got to tell us what 
your lawyer told you [0.8] what's more [0.8] er once you've done that the whole 
of the discussion between lawyer and client can be exposed to cross-examination 
by the prosecution [1.6] and of course [0.4] er [0.5] that might be [0.4] er [0.
9] er might be a consequence which many defendants would would wish not to 
occur [0.7] they might not wish er their discussions with their lawyer to be [0.
2] disclosed [1.0] er [0.4] the effect of Condron and Condron therefore i think 
is to [1.1] er [0.3] create some considerable [0.6] er dilemmas [2.7] first of 
all there are dilemmas for the legal adviser [1.5] er [0.5] there may be 
circumstances where the legal adviser thinks that [1.4] in [0.3] his or her 
client's best interests [0.7] er it it should be a no comment [0.3] interview a 
silent [0.2] interview [1.1] er for instance where the er [0.4] person is 
incredibly upset [0.6] young [0.2] immature [0.9] er [0.2] easily suggestible 
[0.7] any of these factors may be factors where the the lawyer may say [0.6] my 
client wouldn't [0.4] wouldn't stand up to interrogation [0.7] might say 
something which they didn't really mean [0.7] might be led into [0.3] into 
answering [0.7] in a way they d-, wouldn't want to [0.5] i should advise 
silence [0.8] if the [0.3] lawyer [1.5] takes that course the the lawyer [0.3] 
just 
doesn't know what the result would be [1.1] er [0.7] really Condron leaves it 
hit and miss [0.5] Condron says well if the lawyer advises silent [1.2] silence 
[1.4] the court at a later stage could say well inferences can be drawn or they 
could accept [0.6] the lawyer's advice was bona fide and not draw inferences 
but [0.2] the lawyer just doesn't know [0.9] so whereas lawyers normally [0.7] 
if you like [0.6] er are trying to advise on what can be predicted from certain 
cours-, courses of action [0.9] this makes it very difficult [0.2] 'cause they 
wouldn't be able to predict [0.2] what the result of silence would be [2.0] 
secondly [0.2] [0.4] er [0.5] if there was any prospect [1.0] of [0.4] the 
client [0.3] being [0.6] wholly or partially silent [2.0] on legal advice [0.9] 
it would seem that the [0.5] lawyer would have to say to the client well i must 
warn you [1.2] if you're going to be silent and you're going to rely upon the 
advice i've given you [1.7] bear in mind [0.4] that if you want to raise that 
in court as an excuse [0.5] on the grounds that an inference is not being drawn 
[0.4] the court [0.9] can then have me cross-examined to find out 
everything that's passed between us [1.0] so [0.4] i warn you if you want to 
rela-, to be silent in interview [0.3] think carefully about what you're going 
to tell me because i might have to tell the court what you've been telling me 
today [1.1] and of course that is really the antithesis of the [0.5] 
professional confidential relationship between lawyer and client we normally 
expect [1.0] so that decision really does raise a number of difficulties for 
legal practice [0.5] er and for [0.2] defendants [0.8] er [1.0] having said 
that in terms of [1.4] furthering the [0.3] er aims of the government in 
passing the legislation [0.5] er it's a very efficient decision doesn't it 
isn't it [1.2] er [0.4] it really minimizes the possibility of escaping 
inferences [1.9] er and therefore if you like maximizes [0.2] the pressure on 
the defendant to speak [2.5] er [7.1] Argent er was a case er [0.5] discussed 
in Rosemary Pattenden's article in the er [0.5] materials [0.5] er which really 
follows on from Condron [0.8] er Argent was a a case where [1.1] er the 
defendant was charged with er [0.6] murder [1.8] it was a stabbing outside a 
nightclub late at night [1.2] er [0.2] where the defendant [1.1] er had 
certainly been [0.3] at or close to the scene [1.4] and had been identified [0.
4] as the assailant by people who knew him [1.6] er the defendant had been [0.
3] er silent at interview [1.7] er but later [1.1] er at er [0.4] trial [0.8] 
raised a [0.9] a rather detailed a-, a-, account [0.5] of his movements after 
[0.5] leaving the nightclub which didn't include stabbing the victim [0.7] all 
sorts of [0.5] talking about who he met on the way home how they'd gone to a 
restaurant but it was shut [0.9] [laughter] and then they'd gone to the fish 
and chip shop all this sort of thing so there was a very full account [0.8] er 
and that was a [0.3] case where the court accepted that [0.8] er again was 
really no [0.8] er [0.3] reasonable excuse for the defendant not having [0.9] 
given this straightforward account of his movements to the police [0.6] er and 
inferences were drawn [1.7] er it's a useful case in some ways because [0.5] er 
[0.7] the court in that case does set out all the requirements [0.7] er [0.3] 
for drawing inferences although [0.3] they they in in effect only repeat [0.3] 
what is said in section thirty-four [1.3] let's move on [0.6] er [2.0] it is 
important [0.2] that [1.6] er the court [0.7] have in mind the 
particular circumstances surrounding the interview or interrogation [1.6] if 
you look at section thirty-four [1.5] er inferences can only be drawn [0.6] 
when in all the circumstances of the interview [0.4] it would have been 
reasonable [0.4] to mention the fact [0.7] which is later relied upon in court 
[1.2] er [0.6] and so if you like [0.2] before inferences can be drawn the 
court really has to analyse [0.8] er [0.9] the interview [0.3] look at what 
questions were asked what was the state of knowledge of the parties et cetera 
[0.9] er and the case of N i think the n-, the name's Nicholson it's been 
reported elsewhere since [0.3] and o-, originally it's just R-V-N [0.7] er is a 
case where really the court failed [0.2] to [0.2] properly analyse [0.6] er the 
state of fact state of knowledge at the time of the interview [1.6] er what 
happened in this case was that the defendant was charged with er [0.6] er a 
sexual offence with a little girl [1.1] and [0.8] er [0.2] in court [0.6] the 
trial judge [1.0] invited the jury [0.7] to er [0.8] draw inferences [0.8] from 
the defendant's failure to to give an account [0.2] at interview [1.5] and in 
particular [0.9] the jury [1.0] were invited [0.6] that 
they could draw inferences from the fact that the [0.6] defendant had no 
explanation [1.1] for the fact that er s-, [1.0] what was tested to be his 
semen [0.6] er was found on the little girl's nightdress [1.8] so the trial 
judge said well [1.0] he was interviewed by the police but somehow or other he 
didn't mention [0.5] or he didn't give any any reason any explanation how his 
semen had got on this little girl's nightdress [1.0] er [0.2] the s-, court 
pointed out [0.7] er [0.2] at the time [0.2] of the interview the police had 
not mentioned [0.3] to him [0.4] that semen was found on the nightdress [1.2] 
er [0.5] and so [0.2] it couldn't really be said that it would have would have 
been reasonable for him to explain this fact away [1.4] er [0.2] if it hadn't 
been put to him [1.6] wasn't clear that he would even have known [0.2] that how 
it was an issue [0.8] er and er [0.7] his conviction was quashed because of the 
problem that the [1.3] the er [0.4] court [0.4] the jury may have [0.3] drawn 
an inference there quite wrongly [1.6] er [8.6] er another case i think where 
[0.3] er the court really failed to properly analyse [0.5] whether the if you 
like the structure of the case [0.5] and work out whether it was 
appropriate to draw inferences under section thirty-four [0.5] the recent case 
of Bowers Taylor and Millan [0.9] er that was a c-, a case where the three of 
them were charged with importing er cannabis [1.4] er [1.3] one of them er [1.
2] Bowers i think it was who mysteriously is described as [0.2] G in my notes 
[laughter] [0.5] think that should read a B [0.7] er [0.8] one of them had 
failed [0.3] to [0.2] give any sort of explanation for fairly incriminating [0.
6] er [0.6] drug paraphernalia [0.8] paraphernalia for [0.7] weighing and 
cutting and storing drugs et cetera [1.5] and all three were silent in court [2.
3] all three were silent in court [0.7] er [0.9] trial judge [0.3] invited the 
jury [1.3] that [0.3] they could draw inferences [0.9] er [0.2] from [0.6] 
failures to explain facts at interview [2.9] they were convicted and appealed 
[1.1] and their criticism of the trial judge's er ruling was that [0.7] of 
course [0.7] section thirty-four applies [0.6] not simply by virtue of silence 
in police interview [1.1] but rather [0.2] where [0.7] a defence is raised 
later in court [1.2] about which [0.3] the defendant had been silent in 
interview [1.7] so it's not just failure to give an explanation 
i-, it's a situation where oh you're trying to rely upon a defence in court [0.
6] isn't it fishy that you didn't mention it [0.5] when you had an opportunity 
earlier on [0.3] in interview [1.3] er [0.8] and the question rose really 
whether this was a case where the defendants could have been said to have 
relied upon any facts [0.4] in their defence in court [1.8] what the court said 
was this they said that [1.2] it was not a requirement [1.4] er [0.2] that the 
defendant must give evidence in court [1.5] before section thirty-four can 
apply [2.3] as the court pointed out [0.8] er a defendant can rely upon facts 
in court [0.6] in various ways [1.5] the defendant himself [0.7] might give 
evidence of those facts and rely upon them [1.3] the defendant may call a 
witness [0.6] to those facts [1.0] very often the case [0.7] the defence make 
their d-, [0.5] decision of we will call this witness they choose that witness 
[0.5] 'cause they're relying upon the facts in that witnesses' statement [0.6] 
another way of relying upon facts by way of defence [1.0] and even [0.5] er the 
defendant could [0.5] rely upon facts which 
were elicited from a prosecution witness [0.9] in the course of cross-
examination [0.6] on behalf of the defendant [1.8] so [0.2] it doesn't matter 
that the defendant's silent in court he can still rely upon facts [1.0] with 
the evidence of another witness or perhaps even through cross-examination [0.6] 
of a prosecution witness [1.0] but [0.2] said the court in this case [0.8] er 
[0.6] here the jury should have been directed not to draw inferences because [0.
5] er as well as the defendant being silent [0.6] er there ha-, really was no 
reliance upon facts [0.6] er [0.6] this really was a case where the [0.6] er 
line of defence was just to test [0.9] the [0.3] evidence for the prosecution 
[0.9] see how far it went [0.7] er there were no actual factual allegations no 
alternative [0.8] er propositions [0.8] er on which the defence was based [0.5] 
er and therefore [0.2] it wasn't a case in which section thirty-four [0.3] 
should have applied [2.2] er [1.8] does that makes sense [0.8] yeah simple 
enough [0.9] move on er [0.9] a very important case i think is er the very 
recent case or fairly recent case of McGarry in nineteen-ninety-eight [2.0] er 
[2.9] what happened in McGarry [0.2] was 
that [7.1] McGarry er had been silent in cour-, er in in interview [3.6] and [0.
9] er that fact was made known to the jury at his trial [1.1] er [1.4] who 
heard [0.2] a a a transcript [1.3] of the er [0.7] questions [0.7] and answers 
[0.7] between the police and McGarry so [0.6] McGarry had been silent in 
interview [0.8] and the jury [0.5] were made known [0.9] made aware of that [0.
4] rather [1.1] er [1.1] the jur-, the judge simply left the issue to the jury 
[0.4] the question of guilt [0.5] and didn't say anything about section thirty-
four or inferences [1.5] this wasn't a case where section thirty-four could 
have applied [1.0] didn't rely upon any particular [0.5] facts in court [0.3] 
she hadn't mentioned in interview [0.6] so the judge said nothing about section 
thirty-four [1.1] the first round of McGarry's appeal was that [1.5] if section 
thirty-four doesn't apply [1.7] McGarry should be entitled [1.0] to a judge's 
direction in his favour [1.2] telling the jury that no inferences could be 
drawn [3.2] so if you like [0.7] er lawyers [0.5] in the McGarry case were 
really saying well okay [0.7] in certain circumstances inferences can be drawn 
against the defendant [0.9] so if you like the law [0.7] can 
operate so as to [0.7] er [0.2] create evidence aga-, against the defendant [0.
4] but [0.5] where that doesn't operate where section thirty-four isn't 
applicable [0.9] the defendant's entitled to [0.4] if you like [0.6] an 
equivalent protection [0.8] to prevent juries [0.8] er [0.2] off their own back 
perhaps assuming that silence was in some way evidence of guilt [1.0] and yes 
said the Court of Appeal [0.4] er [0.5] if section thirty-four wasn't 
applicable [0.7] the defendant had been silent [0.7] er the defendant was 
entitled to that [0.3] direction in his favour [0.9] the judge should tell the 
jury [0.4] well members of the jury [0.4] he's been silent but he's got a right 
to be [0.6] and you shouldn't attach any significance [0.2] to his silence [2.
1] er and that's important [0.2] er [0.9] er [0.7] something which defence 
lawyers w-, will no doubt exploit [1.6] the [1.2] second er [0.3] and perhaps 
[0.3] er less [0.3] focused upon [0.2] issue in this case [1.2] er was [1.2] 
that the [0.3] er lawyer [0.6] advising McGarry [0.9] er [1.2] adopted a tactic 
which [0.2] has w-, had been much discussed [0.9] and the tactic [0.5] is [0.8] 
to say to the defendant well [0.4] as an alternative to [0.4] submitting to 
interview [1.2] er you don't you don't want to speak to 
the police [0.4] but [0.3] it may be a good idea to give your story to av-, 
avoid a-, [0.3] adverse inferences being drawn [0.4] so as an alternative to 
answering questions [0.9] why don't you and i sit down we will rep-, [0.4] 
prepare a statement [0.6] of what your defence is going to be [1.1] walk into 
the interview room [0.9] tape switched on caution given saying well here you 
are police officer [0.3] here's my statement [0.8] er i've set out what my 
defence is there [0.4] you've got it i'm not going to say anything more [0.9] 
and that was the tactic in McGarry [1.1] and what was interesting [0.7] in this 
case was the er [0.4] the court said well [1.4] er [0.5] this was a case where 
no inferences should be drawn [1.0] er McGarry did raise a defence in court [1.
0] but it was precisely the one he'd given notification of [0.6] to the police 
[2.6] nothing new [1.1] er [0.7] and it was suggested that no inferences could 
be drawn against the defendant [2.1] because it couldn't be said that he hadn't 
notified the police of this defence [1.0] at the stage of interview [2.4] let's 
er [1.2] let's talk about that [1.1] well [0.4] i think it's [1.3] i suppose 
from [0.4] a point 
of view of the police project it's a very unfortunate decision [1.7] er [1.6] 
as we said right at the beginning in the introduction [0.9] er one of the 
reasons the police campaigned to change the law [1.5] on silence one of the 
reasons the police campaigned to [0.6] er [0.6] be able to draw inferences from 
silence [0.6] er in police interview [0.5] was that they wanted to be able to 
put pressure on suspects to speak [1.0] the idea is they want suspects who are 
speaking [0.7] for all sorts of reasons if they speak and raise a defence that 
can be broken down [0.9] if they have to speak quickly [0.3] er [0.6] soon 
after the crime they may not may not have time to fabricate a good defence [0.
4] if they fabrica-, [0.3] fabricate a defence on the spot [0.4] there may be 
weaknesses in it it may be easy to break that down et cetera [0.4] so the 
police really do want [0.6] to create a dialogue [0.2] they don't just want to 
hear what the defence is [1.1] er [0.2] if McGarry is followed [0.7] er it 
should be possible for defence lawyers [0.5] to avoid [0.7] er the risks 
inherent in a dialogue between [0.3] police and suspect [1.1] er and a if you 
like [0.5] put 
the defence lawyer or the defendant right back in the driving seat [0.7] er [0.
6] if McGarry's right the defence lawyer lawyer [0.3] or i-, if it's followed 
the defence lawyer should be able to [0.4] as it were just construct a good 
defence [0.5] a statement [0.4] and as long as it matches what is said [0.4] 
eventually in court [0.6] er no inferences can be drawn [1.6] er [1.1] i'm 
interested to see really what will happen to McGarry [0.6] er as i said i think 
it wasn't quite what the government had in mind [1.0] er [1.1] and certainly 
cause problems for the police and er [0.7] if you do get judges who are really 
[0.7] in favour of the idea that s-, suspects really should speak in interview 
[0.7] er 
then we may find that courts [0.4] are either overturning McGarry or at least 
distinguishing it [1.0] er and of course [0.7] it would be possible to 
distinguish McGarry [0.2] for instance if there was only an outline statement 
given in the police station [0.6] where we'd bu-, but a much fuller defence 
with more details given in court [0.7] er if that occurred [0.6] er i think it 
[0.5] it would be possible to say well [1.5] the fact that there there was o-, 
this only [0.2] bare out-, only a bare outline might suggest it hadn't been 
fully worked out [0.6] maybe an inference can be drawn that it shouldn't be 
believed [0.9] who knows [0.8] er shall we er take a break there and er [1.7] 
i'll move on to [0.4] talk about other inferences [0.5] after a break