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Reliance On Advice At The Police Station

Section 34 of the Criminal Justice and Public Order Act 1994 provides that where a defendant

on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings…being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned the jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.

The question which has very frequently arisen in this context is whether the advice given by a solicitor to remain silent is good enough to prevent the inference that the client could reasonably have been expected to answer the questions.

In the aftermath of the various Condron cases, and after visits to the Strand and to Strasbourg and back again, the position reached appeared to be reasonably favourable to the defence. In R v Betts and Hall [2001] 2 Cr App R 257 Kay LJ stated (paras 53-54):

53… In the light of the judgment in Condron v United Kingdom it is not the quality of the decision but the genuineness of the decision that matters. If it is a plausible explanation that the reason for not mentioning facts is that the particular appellant acted on the advice of his solicitor and not because he had no or no satisfactory answer to give then no inference can be drawn.

54. That conclusion does not give a licence to a guilty person to shield behind the advice of his solicitor. The adequacy of the explanation advanced may well be relevant as to whether or not the advice was truly the reason for not mentioning the facts. A person, who is anxious not to answer questions because he has no or no adequate explanation to offer, gains no protection from his lawyer's advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts.

The general interpretation of this has been that if a defendant could show that his silence was caused by genuine reliance on his solicitor’s advice to remain silent he could prevent an adverse inference. It was emphasised that the quality of the advice was not important, the genuineness of the reliance was. This was the culmination of the “subjective” approach.

In R v Howell [2003] Crim L R 405 the Court of Appeal struck out in what appeared to be a new direction. Even if the advice had been genuinely followed that was no longer enough necessarily to preclude an adverse inference. Laws LJ said:

There must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police. Solicitors bearing the important responsibility of giving advice to suspects at police stations must always have that in mind.

It has been noted by some that in coming to this view the court cited Beckles v United Kingdom [2003] 36 EHRR 13 but omitted mention of paragraph 64 which had approved the judgment in Betts, but this is probably harsh in an area where the concepts are not entirely discrete. Laws LJ affirmed his reasoning in R v Knight The Times, August 20, 2003.

Thus the matter stood, with an apparently unbridgeable division between the subjective approach of Betts and the objective approach of Howells and Knight. This division was explored in R v Hoare [[2004] EWCA Crim 784 where the appeal was largely based on the fact that the judge had followed Howells and not Betts. The court held that there was no difference between the 2 approaches. Having scrutinised and studied the judgment, and dissected it and re-examined it, I confess that I do not understand this assertion. After reviewing the development of the authorities Auld LJ said:

46. Thus, as Kay LJ made plain in the second half of the last sentence in paragraph 53 and the whole of paragraph 54, however sound the advice in law or as a matter of tactics, a defendant is not entitled to hide behind it if, at the time, the true reason for not mentioning the facts was that he had no or no satisfactory explanation consistent with his innocence to offer.

It seems to this practitioner that what the court has done is not to deal with the essential distinction between the subjective and the objective approach and leave it at that. It has endorsed a direction which leaves the relevance of the objective test somewhat unclear. For now, therefore, it is safest to assume that the question for the jury is whether, regardless of advice, genuinely given and genuinely accepted, the accused had remained silent not because of that advice, but because he had no, or no satisfactory, explanation to give to the court. In my book that means that the advice was not the genuine reason for his silence, as in Betts. So why did Mr Hoare not get that simple and straightforward direction?

Now we have at least a clearer answer in a judgement handed down on 12th November 2004 by Lord Woolf CJ in a case which had been remitted following an adverse judgement in Strasbourg, R v Beckles [2004] EWCA Crim 2766. Trying to reconcile the various authorities the court stated that the Judicial Studies Board are currently working on an amendment to their specimen direction following the Hoare case.

Thus the specimen direction (currently) asks the jury to consider whether the defendant genuinely relied on the legal advice to remain silent. We understand that in the light of R v Hoare & Pierce a revision to the specimen direction is now in draft and will be issued shortly. Under the revised direction the jury will be asked to consider whether the defendant genuinely and reasonably relied on the legal advice to remain silent.

Thank goodness for solicitors; I for one would hate to have to give advice in a particular case.

Related Information

• Criminal Justice and Public Order Act 1994

25 November 2004

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