Silence on Legal Advice Revisited: R v Howell
| Author | Anthony F. Jennings,Andrew L.-T. Choo |
| Published date | 01 July 2003 |
| Date | 01 July 2003 |
| DOI | http://doi.org/10.1177/136571270300700303 |
| Subject Matter | Case Notes |
CASE
NOTES
Silence on legal advice revisited: Rv
Howell
By Andrew
L.-T
Choo and Anthony
F.
Jennings
Professor of Law, Brunel University; Barrister, Matrix Chambers; and
Barrister, Matrix Chambers, respectively
ne of the most controversial principles of the law of criminal evidence in
England and Wales is that provided by
s.
34
of the Criminal Justice and
Public Order Act
1994.
Section
34
permits inferences to be drawn from
an
accused’s failure to mention in interview a fact later relied on at trial which
in the circumstances existing at the time the accused could reasonably have been
expected to mention.
As
the recent decision of the Court of Appeal in
R
v
Howell’
demonstrates, an issue that continues to trouble the courts is the extent to which
adverse inferences may be drawn where the suspect
acted
on
legal
advice
in failing
to mention a fact in interview.
In
Howell.
the appellant appealed against his conviction of wounding with intent.
When sought to be interviewed by the police he had made no comment on the
advice of
his
solicitor. The basis for this advice was that the complainant had not
provided a written statement. At trial, Howell relied on the defence of selfdefence.
Although a number of grounds of appeal were raised in the appeal to the Court
ofAppeal, this note will be concerned onlywith issues raised by the no-comment
interview. In particular, it was argued that the judge had erred in directing the
jury in the following terms:
The defendant told you,
‘I
asked a solicitor’s advice, he gave it,
I
accepted it.
I
would have told the police the full story if
I
hadn’t been
advised to say nothing’.
You
may think, but it is entirely a matter for
1
[2003] EWCA Crim
1.
For
other
discussions
of
this
case
see
R.
Brown, ‘The Benign Continuum?’
Archbold
News.
3 February 2003,
7;
F.
Fitzgibbon. ‘Life in Crime’ (2003) 147
SJ
287.
(2003)
7
E&P
185-190 185
r
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