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