Legal Advice and Pre-Trial Silence—Unreasonable Developments
| Published date | 01 February 2006 |
| DOI | 10.1350/ijep.2006.10.1.60 |
| Author | Simon Cooper |
| Date | 01 February 2006 |
| Subject Matter | Article |
60 E & P
LEGAL ADVICE AND PRE-TRIAL SILENCE—UNREASONABLE DEVELOPMENTS
Legal advice and pre-trial
silence—unreasonable
developments
By Simon Cooper
Senior Lecturer in Law, University of Sunderland
Abstract This article examines recent case law concerning the drawing of adverse
inferences, pursuant to s. 34 of the Criminal Justice and Public Order Act 1994,
from a suspect’s failure to mention during pre-trial interview facts that he
subsequently relies on in court. The cases reveal that even a defendant who
genuinely accepts and follows legal advice to remain silent cannot be confident
that adverse inferences are precluded. It is argued that more careful thought
needs to be given to what constitutes a genuine reliance on legal advice. Suspects
who do genuinely rely on bona fide legal advice should not have adverse
inferences drawn against them.
It is now well known that when a suspect is taken into custody and remains
silent in the face of questioning in England and Wales, this may have
consequences for his defence. The nature and severity of the consequences
vary1 but, at the very least, the suspect runs a very real risk that the fact-finder will
draw adverse inferences from silence in the face of questioning.2 Pursuant to the
Criminal Justice and Public Order Act 1994 (hereafter CJPO Act 1994) if a suspect fails
to mention when questioned under caution some fact that he later relies on at trial,3
or to explain incriminating articles in his possession or marks on his clothing,4 or to
* Email: Simon.Cooper@sunderland.ac.uk.
Thanks are due to Alan Reed, Paul Roberts and the anonymous referees who made many
helpful suggestions.
1 One consequence is the imposition of a criminal sanction for non-compliance but may also
include, expressly or impliedly, that statements (or silence) can be admitted into evidence.
Numerous statutory provisions impose obligations to answer questions and/or provide
information in certain circumstances. See for examples, Companies Act 1985, ss. 432 and
434; Insolvency Act 1986, ss. 235 and 236; Financial Services Act 1987, s. 177.
2 A suspect being questioned under the powers given to DTI inspectors may be in the unenviable
position of having to either (1) volunteer incriminating information or (2) face a criminal
penalty for remaining silent.
3 CJPO Act 1994, s. 34.
4 Ibid. s. 36.
(2006) 10 E&P 60–69
*
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