Case Commentaries
| Author | Rosemary Pattenden |
| DOI | 10.1350/ijep.2012.16.1.394 |
| Published date | 01 January 2012 |
| Date | 01 January 2012 |
| Subject Matter | Article |
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Statements implied by non-assertive conduct—United Kingdom
Bielecki vDPP [2011] EWHC 2245 (Admin) is a deceptively simple case. When the
police stopped the defendant’s vehicle, they smelt alcohol on his breath. He was
taken to a police station where he was asked in English to provide a specimen of
his breath. As the defendant spoke only Polish, an interpreter was provided. The
defendant did not comply and was therefore prosecuted under s. 7(6) of the Road
Traffic Act 1988 for failing to supply specimens of breath when this was requested
of him. At the trial, a police officer testified that after the request was made in
English, the interpreter had spoken to the defendant in a foreign language that
was not understood by any of the police bystanders. The interpreter was not
produced as a witness at the trial where the defence was that Bielecki had been
unaware that he had been asked to provide a breath sample. He did not go into the
witness box to back up this claim. The issue for the Divisional Court was whether,
in these circumstances, the magistrates were entitled to infer beyond reasonable
doubt, as they had done, that the defendant had committed the s. 7(6) offence. It
was agreed by the parties that the burden of proving that the defendant did not
have a ‘reasonable excuse’ to provide the specimen rested with the prosecution.
The defence relied on RvAttard (1958) 43 Cr App R 90, a trial in which Gorman J
had ruled in favour of a defence submission that if the prosecution wanted to give
evidence of an interview conducted with a defendant through an interpreter, the
interpreter had to be called to say what was said during the interview. Foskett J
dismissed this precedent stating that Attard related to police procedures over 50
years ago and that it did not:
[negate] the proposition that a court may draw the inference, if the
evidence supports it, that someone being asked to do something in a
police station by a police officer with the assistance of an accredited
interpreter of the relevant language has been asked the correct
question, understands it and also the consequences of not responding
to it. (at [27])
doi:10.1350/ijep.2012.16.1.394
106 (2012) 16 E&P 106–127 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
The respondent submitted, and Foskett J accepted, that ‘an inference is nothing
more than a common sense conclusion based upon the evidence that is otherwise
accepted’ (at [23]). It was a legitimate inference for the justices to draw that the
words spoken by the police officer in English had been translated accurately.
There was no evidence that the interpreter had not understood the English he was
asked to translate into Polish for the benefit of the defendant or that the
defendant had not understood what the interpreter had said.
Imagine a suspect with no English who is questioned about an offence. The
suspect is cautioned in English and an interpreter is instructed to translate the
caution to him. Words are spoken to the suspect in a tongue that none of the
onlookers understands. The defendant remains silent throughout the interview.
The interpreter departs without commenting on what he told the suspect.
Pursuant to the Criminal Justice and Public Order Act 1994, s. 34, at the trial, the
prosecution treats the defendant’s silence as evidence. The defence objects on the
grounds that the caution was not communicated effectively to the defendant. The
prosecution does not produce the interpreter; perhaps he is dead. Could a judge or
jury infer from the evidence that the defendant was cautioned and chose to
remain silent? According to Bielecki vDPP the answer is ‘yes’.
Foskett J was right that RvAttard was irrelevant, but not for the first reason that he
gave: a change in police procedures. In both the hypothetical scenario and in
Bielecki one is dealing with an unintended statement implied by conduct. The
conduct in question is not that of the defendant, but that of the interpreter. The
interpreter is like the deceased sea captain in Wright vDoe d Tatham (1837) 7 A & E
313 at 388 who boarded a ship, inspected every part of it, and then set sail with his
entire family aboard. In Doe d Tatham the implied statement was that the ship was
seaworthy. In Bielecki vDPP and the hypothetical, the implied statement is that the
interpreter did his job. Statements implied by non-assertive conduct have never
been classified as hearsay. As I point out in Phipson on Evidence, 17th edn (2010),
para. 28-47, a hearsay rule that encompassed unintended assertions implied by
non-assertive conduct is just too complex for the courts to handle. This position
has been reinforced by s. 115(3) of the Criminal Justice Act 2003: ‘A statement is
one to which this Chapter applies if (and only if) … one of the purposes of the
person making the statement appears to the court to have been (a) to cause
another person to believe the matter, or (b) to cause another person to act … on the
basis that the matter is as stated’.
Arguably, based on common-sense generalisations about human behaviour, the
inference in Doe d Tatham was stronger than that in Bielecki vDPP. Nevertheless, it
was reasonable for the magistrates to be satisfied to the criminal standard of proof
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