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<?xml version="1.0"?>

<!DOCTYPE TEI.2 SYSTEM "base.dtd">




<title>Silence as evidence</title></titleStmt>

<publicationStmt><distributor>BASE and Oxford Text Archive</distributor>


<availability><p>The British Academic Spoken English (BASE) corpus was developed at the

Universities of Warwick and Reading, under the directorship of Hilary Nesi

(Centre for English Language Teacher Education, Warwick) and Paul Thompson

(Department of Applied Linguistics, Reading), with funding from BALEAP,

EURALEX, the British Academy and the Arts and Humanities Research Board. The

original recordings are held at the Universities of Warwick and Reading, and

at the Oxford Text Archive and may be consulted by bona fide researchers

upon written application to any of the holding bodies.

The BASE corpus is freely available to researchers who agree to the

following conditions:</p>

<p>1. The recordings and transcriptions should not be modified in any


<p>2. The recordings and transcriptions should be used for research purposes

only; they should not be reproduced in teaching materials</p>

<p>3. The recordings and transcriptions should not be reproduced in full for

a wider audience/readership, although researchers are free to quote short

passages of text (up to 200 running words from any given speech event)</p>

<p>4. The corpus developers should be informed of all presentations or

publications arising from analysis of the corpus</p><p>

Researchers should acknowledge their use of the corpus using the following

form of words:

The recordings and transcriptions used in this study come from the British

Academic Spoken English (BASE) corpus, which was developed at the

Universities of Warwick and Reading under the directorship of Hilary Nesi

(Warwick) and Paul Thompson (Reading). Corpus development was assisted by

funding from the Universities of Warwick and Reading, BALEAP, EURALEX, the

British Academy and the Arts and Humanities Research Board. </p></availability>




<recording dur="00:51:35" n="6525">


<respStmt><name>BASE team</name>



<langUsage><language id="en">English</language>



<person id="nm1152" role="main speaker" n="n" sex="m"><p>nm1152, main speaker, non-student, male</p></person>

<person id="sf1153" role="participant" n="s" sex="f"><p>sf1153, participant, student, female</p></person>

<person id="sf1154" role="participant" n="s" sex="f"><p>sf1154, participant, student, female</p></person>

<person id="om1155" role="observer" n="o" sex="m"><p>om1155, observer, observer, male</p></person>

<person id="su1156" role="participant" n="s" sex="u"><p>su1156, participant, student, unknown sex</p></person>

<personGrp id="ss" role="audience" size="l"><p>ss, audience, large group </p></personGrp>

<personGrp id="sl" role="all" size="l"><p>sl, all, large group</p></personGrp>

<personGrp role="speakers" size="7"><p>number of speakers: 7</p></personGrp>





<item n="speechevent">Lecture</item>

<item n="acaddept">Law</item>

<item n="acaddiv">ss</item>

<item n="partlevel">PG</item>

<item n="module">unknown</item>




<u who="nm1152"> the second handout is called <pause dur="0.8"/> # Silence As Proof <pause dur="0.6"/> and is a seminar handout <pause dur="0.8"/> # <pause dur="0.2"/> for <pause dur="0.5"/> # the week after <pause dur="0.9"/> this one <pause dur="1.1"/> # <pause dur="1.0"/> do bear in mind this week that the two # <pause dur="0.2"/> seminars on silence are incremental <pause dur="0.6"/> as you know this week we have a a working group <pause dur="0.5"/> # looking at some of the issues and some of the evidence <pause dur="0.6"/> # <pause dur="0.6"/> # and really addressing the question of whether <pause dur="0.7"/> # for all sorts of evidential and process reasons we should be treating silence as proof <pause dur="0.6"/> and whether we should be putting accused persons under pressure to <pause dur="0.3"/> speak either in interview <pause dur="0.4"/> or in the <trunc>pl</trunc> or or in court <pause dur="0.9"/> # <pause dur="0.5"/> the <pause dur="0.5"/> next seminar for the week after this one <pause dur="0.5"/> # as you'll see is very very practical <pause dur="0.7"/> # <pause dur="0.3"/> it <trunc>r</trunc> <pause dur="0.2"/> really requires # <pause dur="0.4"/> the individuals in the seminar group to adopt the role of a legal adviser <pause dur="0.5"/> # and to tackle three rather different <pause dur="0.5"/> # practical problems of advice <pause dur="0.2"/> or action <pause dur="0.7"/> so <pause dur="0.5"/> do bear in mind the the two are incremental so <pause dur="0.4"/> make sure you get good value out of this week's working group as a <pause dur="0.3"/> a precursor <pause dur="0.6"/> to # the

seminar to come <pause dur="1.0"/> right <pause dur="0.2"/> # <trunc>ha</trunc> has the # seminar <trunc>sh</trunc> # lecture sheet got round so far </u><u who="ss" trans="overlap"> no <vocal desc="laughter" iterated="y" dur="1"/> </u><pause dur="0.7"/> <u who="nm1152" trans="pause"> right <trunc>w</trunc> where's it got to <pause dur="5.2"/> who who hasn't who's got one </u><pause dur="1.0"/> <u who="sf1153" trans="pause"> <gap reason="inaudible" extent="1 sec"/> <pause dur="0.3"/> who has got one </u><pause dur="0.2"/> <u who="nm1152" trans="pause"> yeah who has got one <pause dur="1.8"/> so it's got down this far <pause dur="0.9"/> are there any spares </u><pause dur="1.4"/> <u who="ss" trans="pause"> yeah here here here </u><pause dur="0.2"/> <u who="nm1152" trans="pause"> ah there are </u><u who="ss" trans="latching"> oh yeah <vocal desc="laughter" iterated="y" dur="1"/> </u><u who="nm1152" trans="overlap"> okay yeah <pause dur="0.2"/> could you could you sort of pass those along <pause dur="0.8"/> are there any other pockets of spares </u><u who="sf1154" trans="overlap"> <gap reason="inaudible" extent="2 secs"/></u><u who="nm1152" trans="overlap"> or pass them down or </u><pause dur="0.3"/> <u who="ss" trans="overlap"> <gap reason="inaudible" extent="1 sec"/> </u><pause dur="0.5"/> <u who="nm1152" trans="pause"> just keep <trunc>ca</trunc> passing them down till <pause dur="6.5"/> is this all right # <pause dur="0.2"/> <gap reason="name" extent="1 word"/> # <pause dur="1.4"/> # you'll cut this bit off the beginning will you </u><u who="om1155" trans="latching"> that's right yeah <vocal desc="laughter" iterated="y" dur="1" n="os"/> </u><u who="nm1152" trans="overlap"> yeah shall i </u><u who="om1155" trans="overlap"> <pause dur="0.5"/> i can cover you </u><u who="nm1152" trans="overlap"> promise me you will yeah <pause dur="0.7"/> yeah <pause dur="1.1"/> # if i <trunc>pi</trunc> <trunc>ap</trunc> <pause dur="0.2"/> appear a little # stage-struck it's because of the # <pause dur="0.4"/> the cameras <pause dur="1.7"/> right have the handouts they're still coming </u><gap reason="break in recording" extent="uncertain"/> <u who="nm1152" trans="pause"> right <pause dur="0.8"/> # <pause dur="0.6"/> after that false start <pause dur="1.8"/> after that <pause dur="0.8"/> after that false start <pause dur="0.6"/> let's proceed <pause dur="0.8"/> # <pause dur="0.2"/> we're going to talk today about <pause dur="0.3"/> the <pause dur="0.2"/> # <pause dur="0.2"/> new provisions in English law <pause dur="1.1"/> # under which <pause dur="0.6"/> # inferences <pause dur="0.3"/> # can be drawn <pause dur="0.5"/> from the fact that the accused person <pause dur="0.5"/> has been silent <pause dur="0.3"/> at some stage of the criminal process <pause dur="1.2"/> # <pause dur="0.2"/> the <pause dur="0.6"/> # <pause dur="0.5"/> starting point really for our consideration of what the law is today <pause dur="0.4"/> is The Criminal Justice and Public

Order Act of nineteen-ninety-four <pause dur="1.0"/> # which # as you should know by now is <pause dur="0.2"/> closely modelled on <pause dur="0.6"/> the # Northern Irish <pause dur="0.3"/> # legislation which is the Criminal # <pause dur="0.7"/> Procedure <pause dur="1.0"/> # or or it <pause dur="0.4"/> the Northern Ireland Criminal # <pause dur="0.2"/> Procedure Order of nineteen-eighty-eight <pause dur="1.9"/> # <pause dur="1.3"/> we're going to look at the individual provisions of the Criminal Justice and Public Order Act <pause dur="0.3"/> # and focus in on the different stages <pause dur="0.5"/> # at which silence can be treated as evidence <pause dur="1.0"/> # and the first # <pause dur="0.2"/> stage <pause dur="0.2"/> is <pause dur="0.3"/> in relation to silence <pause dur="0.5"/> during <pause dur="0.3"/> a formal police interview <pause dur="1.2"/> # which is dealt with by section thirty-four of the act <pause dur="1.7"/> if we ask ourselves well what is section thirty-four all about <pause dur="1.3"/> think we're aware by now it's <pause dur="0.4"/> # to prevent ambush defences <pause dur="1.0"/> # to prevent the possibility of the defendant raising an unexpected <pause dur="0.3"/> defence <pause dur="0.3"/> at trial <pause dur="0.8"/> which might wrong-foot <pause dur="0.2"/> the prosecution <pause dur="0.7"/> and which might lead to an unmerited acquittal <pause dur="1.5"/> # <pause dur="1.1"/> so it it it does that by really putting the the defendant under pressure to speak <pause dur="0.5"/> in the hope that # <pause dur="0.4"/> if he's going to raise a defence it will be

raised at # <pause dur="0.3"/> <trunc>i</trunc> in the interview <pause dur="0.9"/> # secondly <pause dur="0.7"/> # the <pause dur="0.8"/> procedure is <pause dur="0.2"/> designed to encourage more defendants to speak <pause dur="1.0"/> # and that of course is <pause dur="1.0"/> not simply for the purpose of <pause dur="0.3"/> # <pause dur="0.4"/> finding out what any defence might be <pause dur="0.8"/> but also i think that there is an assumption <pause dur="0.7"/> that once a defendant or suspect is speaking <pause dur="0.8"/> # there's more likelihood of getting <pause dur="0.2"/> either damaging admissions <pause dur="0.6"/> or some <pause dur="0.2"/> confession <pause dur="0.3"/> for him <pause dur="1.1"/> and that of course is <pause dur="0.2"/> # linked <pause dur="0.6"/> to # <pause dur="0.2"/> some faith <pause dur="0.8"/> in the interviewing skill of the police <pause dur="0.6"/> in as it were breaking down <pause dur="0.7"/> # a story which the defendant might raise <pause dur="0.6"/> # as we saw last week i think <pause dur="0.6"/> # <pause dur="0.2"/> all the empirical evidence suggests the police aren't really actually very good at that <pause dur="0.8"/> but there's no doubt about it that this is one of the purposes of the legislation <pause dur="0.7"/> get the suspect to speak <pause dur="0.6"/> the idea is once he's speaking <pause dur="0.7"/> even if he's <pause dur="0.2"/> trying to raise a false defence it could be broken down <pause dur="1.6"/> i'm not going to raise section thirty-four <pause dur="0.3"/> # i've set it out on the sheet you can have a look at it <pause dur="0.6"/> # what i would like to do

is to really <pause dur="0.2"/> # <pause dur="0.4"/> pinpoint some of the key aspects of it <pause dur="2.3"/> # <pause dur="2.4"/> first of all # it applies only <pause dur="0.3"/> in relation to <pause dur="0.4"/> # a defendant who raises a defence in court <pause dur="3.5"/> so the starting point is the defendant who puts up some defence <pause dur="0.8"/> # and that probably means <pause dur="0.3"/> something more <pause dur="0.2"/> than simply putting the prosecution to proof <pause dur="1.2"/> # <pause dur="0.4"/> <trunc>a</trunc> as you know one <pause dur="0.5"/> possible way of defending yourself in court <pause dur="0.6"/> is just to allow your lawyer or counsel <pause dur="0.4"/> to attack the prosecution evidence <pause dur="0.7"/> to <pause dur="0.5"/> test it for weaknesses <pause dur="0.9"/> # <pause dur="1.7"/> if that's all the defendant does if he doesn't rely upon any particular facts <pause dur="0.3"/> in court himself if he doesn't bring forward any evidence <pause dur="0.7"/> # then <pause dur="0.2"/> section thirty-four won't apply <pause dur="1.2"/> second <trunc>retat</trunc> requirement is that <pause dur="0.7"/> # <pause dur="0.7"/> or is that <pause dur="0.6"/> at any time before he's charged <pause dur="0.8"/> # on being questioned under caution by a constable <pause dur="1.1"/> where that constable is investigating an offence <pause dur="0.9"/> # the defendant has failed <pause dur="0.2"/> to mention <pause dur="1.5"/> # <pause dur="0.3"/> some facts <pause dur="1.1"/> or fact <pause dur="1.0"/> which he <pause dur="0.3"/> later relies upon in his defence <pause dur="0.6"/> there must be a defence raised <pause dur="0.4"/> there must be a failure to mention that <pause dur="0.8"/> # <pause dur="0.3"/> at <pause dur="0.4"/> interview formal

interview under caution <pause dur="1.2"/> # or alternatively <pause dur="0.2"/> a failure to mention <pause dur="0.5"/> # the relevant fact when the defendant is actually <pause dur="0.2"/> charged <pause dur="1.0"/> the two possible relevant stages <pause dur="0.4"/> # where the defendant might be silent <pause dur="0.8"/> and in in the course of interview <pause dur="0.6"/> later on when he's informed <pause dur="0.2"/> that he will be charged <pause dur="2.3"/> # <pause dur="2.0"/> in those circumstances inferences can be drawn against the defendant <pause dur="3.1"/> provided <pause dur="0.7"/> that <pause dur="0.3"/> in all the circumstances of the interview <pause dur="0.6"/> it would have been reasonable <pause dur="0.7"/> for him to mention <pause dur="0.2"/> the fact <pause dur="0.6"/> which it is alleged <pause dur="0.5"/> # he has failed to mention <pause dur="4.8"/> okay well that's an outline of section thirty-four <pause dur="0.9"/> what can we say about it <pause dur="0.9"/> # <pause dur="0.5"/> well <pause dur="0.4"/> the inferences that can be drawn under this section <pause dur="1.2"/> # can be drawn in a number of circumstances they're all listed in section thirty-four i've picked out two <pause dur="0.7"/> under <trunc>s</trunc> two-C <pause dur="0.6"/> # where the court or <trunc>jur</trunc> # the court is determining <pause dur="0.3"/> whether there is a case to answer <pause dur="0.8"/> and under D <pause dur="0.6"/> # where the where the court or jury is determining <pause dur="0.5"/> whether the accused is guilty of the offence charged <pause dur="0.7"/> so the suggestion there is that <pause dur="0.6"/> # <pause dur="0.2"/> inferences can support <pause dur="1.0"/>

the first stage <pause dur="0.3"/> is there a case to answer <pause dur="0.5"/> and also support a finding of guilt <pause dur="1.8"/> # <pause dur="1.8"/> there's one oddity here <pause dur="0.7"/> # it had certainly been the intention <pause dur="0.5"/> of the legislation in nineteen-ninety-four <pause dur="1.0"/> that <pause dur="0.4"/> # inferences from silence <pause dur="0.6"/> # <pause dur="0.2"/> might have <pause dur="0.3"/> # operated not only at trial <pause dur="0.9"/> but also at <pause dur="0.4"/> the earlier stage of committal proceedings <pause dur="1.2"/> # the stage at which <pause dur="1.1"/> # <pause dur="0.5"/> traditionally the court has satisfied itself <pause dur="0.6"/> that there is sufficient evidence <pause dur="0.5"/> for the defendant to be put on trial <pause dur="1.3"/> # and it was certainly the intention and the act actually allowed for that <pause dur="1.4"/> however <pause dur="0.2"/> # in nineteen-ninety-six # the nature of committal proceedings were changed <pause dur="0.8"/> committal proceedings were streamlined <pause dur="0.6"/> by the Criminal Proceedings and Investigations Act <pause dur="0.8"/> # <pause dur="0.4"/> and <pause dur="0.4"/> under the new streamlined form of committal proceedings <pause dur="0.9"/> only the prosecution <pause dur="0.5"/> gives its evidence <pause dur="0.8"/> # normally in documentary form <pause dur="1.2"/> there's no scope for the defendant to give evidence at committal proceedings <pause dur="1.2"/> # and there's no scope for the defendant to <pause dur="0.6"/> question <pause dur="1.0"/> # <pause dur="0.6"/> items of

prosecution evidence <pause dur="0.6"/> # or to cross-examine prosecution witnesses <pause dur="1.2"/> so if you like the adversarialism <pause dur="0.4"/> has been taken out of committal proceedings in nineteen-ninety-six <pause dur="0.6"/> very little scope for the defence <pause dur="1.0"/> the effect of that is of course that at committal proceedings <pause dur="0.4"/> # there's no way <pause dur="0.6"/> the defendant can <pause dur="0.2"/> rely upon a <pause dur="0.3"/> # can raise a defence <pause dur="0.8"/> # and rely upon facts in doing so <pause dur="1.0"/> defendant isn't allowed to do anything much at committal proceedings any more <pause dur="0.5"/> as a result <pause dur="0.5"/> # whereas i think # before nineteen-ninety-six <pause dur="0.6"/> # it would have been possible to rely upon <pause dur="0.2"/> a possibility of an inference against the defendant <pause dur="0.7"/> # <pause dur="0.4"/> in order to <pause dur="0.8"/> indicate that there was sufficient evidence to put him on trial <pause dur="0.6"/> that's been swept away and inferences will be relevant only <pause dur="0.7"/> # <trunc>a</trunc> in the court of trial <pause dur="2.1"/> # <pause dur="0.7"/> second point to <trunc>me</trunc> notice is that <pause dur="0.2"/> although <pause dur="0.4"/> i think drawing an inference <pause dur="0.6"/> # clearly means <pause dur="0.3"/> treating the silence as evidence <pause dur="0.9"/> section thirty-eight-three <pause dur="0.5"/> of the <trunc>nineteen-ni</trunc> ninety-four act <pause dur="0.5"/> does make clear <pause dur="0.6"/> it's

necessary to do so <pause dur="0.7"/> that <pause dur="0.4"/> you can't sustain a conviction <pause dur="0.8"/> purely <pause dur="0.4"/> on the basis of <pause dur="0.2"/> an inference from silence <pause dur="1.4"/> # and that makes sense in a way <pause dur="0.3"/> i mean <pause dur="0.7"/> it would be very odd wouldn't it if # <pause dur="1.3"/> when you got to trial the only <pause dur="0.8"/> bits of the prosecution case that stood up were inferences <pause dur="0.4"/> from the fact that the defendant has said nothing <pause dur="1.6"/> # and section thirty-eight-three says you cannot <pause dur="0.2"/> be convicted <pause dur="0.5"/> purely on the basis of an inference <pause dur="0.5"/> from the fact that <pause dur="0.5"/> the defendant was silent under accusation <pause dur="0.8"/> there is however one oddity in section thirty-eight-three <pause dur="1.5"/> does tell us <pause dur="1.1"/> that <pause dur="0.7"/> there can be no <pause dur="0.2"/> conviction solely <pause dur="0.2"/> on the basis of <pause dur="0.2"/> an inference <pause dur="0.7"/> singular <pause dur="1.3"/> and i suppose at least technically <pause dur="1.0"/> that would leave open the possibility <pause dur="0.7"/> # that a defendant <pause dur="0.2"/> might be <pause dur="0.2"/> found guilty <pause dur="0.9"/> # on the basis of multiple inferences <pause dur="1.7"/> # <pause dur="0.2"/> when we look at this legislation <pause dur="0.9"/> # <pause dur="0.2"/> an inference can be drawn <pause dur="0.9"/> from the fact that you <pause dur="0.4"/> don't raise your defence in the police station <pause dur="0.5"/> under section thirty-four <pause dur="1.1"/> but also inferences can be

drawn <pause dur="0.2"/> as we shall see <pause dur="1.3"/> # from your failure to account <pause dur="0.5"/> for the bloodstains on your clothes <pause dur="0.6"/> or from your failure to account <pause dur="0.2"/> for the fact that you were at the scene of the crime <pause dur="1.0"/> and inferences can be drawn <pause dur="0.6"/> # <pause dur="0.5"/> where you'd fail to # <pause dur="1.1"/> give evidence testify in court <pause dur="0.8"/> well <pause dur="0.8"/> section thirty-eight-three doesn't say that <pause dur="0.3"/> # <pause dur="0.7"/> it's impossible for you to be convicted on if you like a collection of inferences <pause dur="0.4"/> from progressive silence <pause dur="0.4"/> throughout the process <pause dur="0.5"/> in the police station at charge <pause dur="0.4"/> and at trial <pause dur="0.4"/> having said that it's # <pause dur="0.4"/> as i said almost inconceivable <pause dur="0.6"/> # that a judge would allow a <pause dur="0.4"/> a case to go to the jury where <pause dur="0.8"/> the only substantial evidence was inferences <pause dur="0.7"/> # <pause dur="0.5"/> and one would hope that juries would <pause dur="0.4"/> would have the good sense if you like if they discounted other evidence <pause dur="0.5"/> not to rely simply on the fact that <pause dur="0.4"/> the defendant had failed to answer <pause dur="0.6"/> charges against him or her <pause dur="2.0"/> okay well <pause dur="0.7"/> # <pause dur="0.5"/> the whole edifice of # <pause dur="0.8"/> inferences from silence in the police station <pause dur="0.5"/> is built upon <pause dur="0.7"/> # <pause dur="0.4"/> a form of words <pause dur="0.8"/> which must be spoken

to the defendant <pause dur="0.9"/> # before he's questioned <pause dur="0.4"/> which is called a caution <pause dur="1.2"/> # the old caution which # <pause dur="0.9"/> is # <pause dur="1.2"/> # # sanctified in numerous # <pause dur="0.6"/> police and detective stories et cetera <pause dur="1.0"/> was along the lines you don't have to say anything <pause dur="1.0"/> # but i warn you if you do anything you do say may be taken down in evidence <pause dur="1.0"/> very familiar sort of wording for those of us who used to watch Dixon of Dock Green and Z Cars <pause dur="1.0"/><vocal desc="laughter" iterated="y" n="ss" dur="1"/> # <pause dur="2.7"/> that caution though had to go and the reason it had to go was of course <pause dur="0.8"/> # if we are going to allow inferences from silence <pause dur="0.8"/> it would have been a bit of a trap wouldn't it <pause dur="0.7"/> we actually said to defendants <pause dur="0.2"/> you don't have to say anything <pause dur="1.2"/> # <pause dur="0.6"/> with the defendant said okay i'll i won't <pause dur="0.3"/> and then found that they were subject to inferences <pause dur="0.7"/> subject to their <pause dur="0.3"/> silence being treated as evidence that would have been unfair and a trap <pause dur="0.7"/> # accordingly # when the new legislation came into force in nineteen-ninety-five <pause dur="0.7"/> # <pause dur="0.6"/> a new caution was drafted <pause dur="0.7"/> # and included in the # <pause dur="0.5"/> code of practice <pause dur="0.5"/> relating to interrogation <pause dur="0.8"/>

# <pause dur="0.3"/> which is # <pause dur="0.8"/> made by the Home Secretary under the Police and Criminal Evidence Act PACE <pause dur="1.7"/> and # the new caution <pause dur="0.5"/> says this <pause dur="0.6"/> <reading>you don't have to say anything <pause dur="0.7"/> but it may harm your defence if you do not mention when questioned something which you later rely upon in court <pause dur="0.8"/> anything you do say may be given in evidence</reading> <pause dur="1.5"/> # <pause dur="0.3"/> well <pause dur="1.0"/> # <vocal desc="sigh" iterated="n"/><pause dur="0.6"/> a lot of people have queried to what extent <pause dur="0.5"/> # that caution <pause dur="0.5"/> makes sense to ordinary people <pause dur="0.9"/> # <pause dur="0.9"/> there have been studies done with A-level students that showed that only sort of forty per cent <pause dur="0.6"/> fully understood it <pause dur="0.6"/> and of course A-level students are likely <pause dur="0.2"/> to be <pause dur="0.7"/> # of a higher # average intelligence than than defendants or suspects <pause dur="1.0"/> nevertheless these words # must be # <pause dur="1.2"/><event desc="changes seat" iterated="n" n="su1156"/> oh i hate it when people start to leave <pause dur="0.7"/> oh <pause dur="0.4"/><vocal desc="laughter" iterated="y" n="ss" dur="2"/> you're not <pause dur="0.6"/> changing seats <pause dur="0.6"/> that's okay <pause dur="5.4"/><vocal desc="laughter" iterated="y" n="ss" dur="3"/> just teasing me <vocal desc="laughter" iterated="y" n="sl" dur="2"/><pause dur="2.3"/> yes what was i talking about <vocal desc="laughter" iterated="y" n="ss" dur="3"/> oh the caution yeah <pause dur="0.8"/> # <pause dur="0.9"/> so there really are questions about <pause dur="0.2"/> what this means to defendants <pause dur="0.4"/> particularly # if it is # run off at high speed <pause dur="0.6"/> # by a a police officer <pause dur="0.2"/> who's who's rather bored with having to

recite these words <pause dur="0.6"/> nevertheless the the caution must be given <pause dur="1.6"/> # the <pause dur="1.3"/> first case in which section thirty-four was tested <pause dur="0.5"/> # was # an interesting case called Condron and Condron <pause dur="1.5"/> # and <pause dur="1.8"/> # <trunc>i</trunc> <trunc>i</trunc> it's a handy case to to think about in terms of its own facts <pause dur="1.0"/> # <pause dur="0.7"/> Condron and Condron <pause dur="0.4"/> # <pause dur="0.9"/> were a <pause dur="0.5"/> husband and wife i think <pause dur="0.7"/> # who were charged with dealing in <pause dur="0.8"/> drugs <pause dur="1.3"/> heroin and heroin substitutes <pause dur="0.9"/> # <pause dur="0.5"/> they had a a flat <pause dur="0.9"/> # <pause dur="0.2"/> the balcony of which <pause dur="0.2"/> was closely adjacent <pause dur="0.6"/> # to the balcony of another man <pause dur="1.2"/> who was also charged <pause dur="3.4"/> the <pause dur="0.2"/> police <pause dur="0.3"/> # <pause dur="0.8"/> story <pause dur="0.7"/> following observations <pause dur="0.4"/> # on these flats <pause dur="0.9"/> was that <pause dur="0.4"/> drugs were stored <pause dur="1.0"/> in their neighbour's flat <pause dur="2.0"/> # but that Condron and Condron were the <pause dur="0.7"/> front people who actually did the dealing with customers in these drugs <pause dur="1.5"/> # <pause dur="0.4"/> and the police alleged that on a number of occasions people had gone <pause dur="0.2"/> knocked on the Condrons' door <pause dur="0.7"/> would enter <pause dur="0.7"/> # the police would then witness <pause dur="0.6"/> # some form of exchange over the balconies <pause dur="0.8"/> # which the police believed were drugs passing from the other flat <pause dur="0.4"/> which were then sold <pause dur="0.3"/> to the <pause dur="0.3"/> customer <pause dur="1.8"/> # <pause dur="1.0"/> and #

the police as well as these observations <pause dur="0.7"/> # had some evidence there was a certain amount of drug taking gear <pause dur="0.8"/> a small amount of drugs found in the Condrons' flat <pause dur="0.7"/> and larger quantities of drugs found in their neighbour's flat <pause dur="1.7"/> well <pause dur="3.7"/> what happened in this case well <pause dur="0.6"/> # <pause dur="0.5"/> the Condrons were taken <pause dur="0.5"/> to a police station <pause dur="0.9"/> # and # asked for legal advice <pause dur="0.4"/> legal adviser attended <pause dur="0.7"/> had a quick chat with them <pause dur="1.0"/> # <pause dur="0.2"/> they indicated to him that they were both # addicted to drugs <pause dur="1.1"/> # and that they were having a bad time because of withdrawal <pause dur="1.1"/> and <pause dur="0.4"/> the legal adviser <pause dur="0.2"/> said well my advice to you is that you're not fit to be interviewed because of the effects of withdrawal <pause dur="0.8"/> # don't say anything <pause dur="1.7"/> # the police called the police surgeon <pause dur="0.6"/> or the Force Medical Examiner as # <pause dur="0.5"/> they're known in some forces the F-M-E <pause dur="1.1"/> the F-M-E turned up <pause dur="0.7"/> and he said well in my view these people are fit to be interviewed they <pause dur="0.8"/> they can understand the questions being asked et cetera <pause dur="0.9"/> and so the police carried on to interview them <pause dur="0.5"/> # but the Condrons

exercised their right to silence <pause dur="2.1"/> so here we have it <pause dur="1.4"/> there's some medical problem <pause dur="1.3"/> legal adviser's considered it <pause dur="0.6"/> and the legal adviser's <pause dur="0.6"/> given advice to <pause dur="0.5"/> exercise the right to silence <pause dur="1.4"/> # <pause dur="0.8"/> the Condrons were were charged <pause dur="0.4"/> # and were <pause dur="0.3"/> convicted <pause dur="0.7"/> of drug dealing offences <pause dur="1.5"/> and as well as relying upon <pause dur="0.7"/> # the positive evidence in the case of which there was quite a lot <pause dur="1.1"/> # <pause dur="0.4"/> the <pause dur="1.6"/> prosecution also <pause dur="1.3"/> # asked the <pause dur="0.5"/> court <pause dur="0.3"/> to draw inferences from the fact <pause dur="0.8"/> # that when various facts <pause dur="0.2"/> like # <pause dur="0.8"/> you know what was happening when things were passing back and forth between the balconies <pause dur="1.0"/> you know why have you got some drugs in your house all this sort of thing <pause dur="0.3"/> when they were asked those questions # in the police <pause dur="0.4"/> station <pause dur="0.5"/> they answered nothing <pause dur="0.6"/> but when they were asked similar questions in court <pause dur="0.6"/> they came up <pause dur="0.4"/> the two of them with a coherent <pause dur="0.4"/> # defence indeed it was a defence which <pause dur="0.6"/> # <pause dur="0.2"/> by that stage was if you like run by all three individuals all three were entirely consistent <pause dur="1.0"/> the defence at trial <pause dur="0.9"/> # was fairly

straightforward <pause dur="0.8"/> it was that the Condrons <pause dur="0.2"/> were themselves drug takers <pause dur="0.8"/> # and they had supplies of drugs and they had # <pause dur="1.3"/> paraphernalia for injecting themselves <pause dur="0.5"/> and that explained why there was drug taking equipment in their flat <pause dur="1.5"/> # <pause dur="0.6"/> and they also said that they were friendly with this # neighbour of theirs <pause dur="0.6"/> and periodically when they # <pause dur="0.8"/> ran out of sugar <pause dur="0.2"/> or tea bags they <pause dur="1.4"/><vocal desc="laughter" iterated="y" n="ss" dur="1"/> popped onto the balcony attracted the neighbour's attention and the the neighbour <shift feature="voice" new="laugh"/>generously <shift feature="voice" new="normal"/><pause dur="0.3"/> passed over a little packet of tea bags or <pause dur="0.2"/> sugar or whatever was needed <pause dur="1.0"/> so # <pause dur="1.6"/> there was an explanation for the drugs in the house <pause dur="0.9"/> which didn't include drug dealing <pause dur="0.5"/> and there was also # an explanation for these little exchanges over the balcony <pause dur="2.1"/> # so clearly they were raising a defence in court it was something which hadn't been mentioned at police interview <pause dur="0.5"/> prosecution said let's draw inferences <pause dur="0.8"/> # and the trial judge <pause dur="0.7"/> # against defence objections <pause dur="0.2"/> told the jury that inferences could be drawn <pause dur="2.0"/> well <pause dur="0.5"/> # they were convicted and the convictions

were tested on appeal <pause dur="1.2"/> # and obviously <pause dur="1.6"/> the case is quite an interesting one isn't it <pause dur="0.7"/> it raises a number of questions <pause dur="1.0"/> # <pause dur="2.2"/> i suppose the biggest is <trunc>h</trunc> # <pause dur="2.3"/> could it ever be said <pause dur="1.4"/> that <pause dur="0.7"/> it would have been reasonable to mention <pause dur="0.8"/> # a fact <pause dur="0.7"/> in police interview <pause dur="1.2"/> when that <pause dur="0.3"/> when to do so was contrary <pause dur="0.7"/> to the advice <pause dur="0.2"/> of <pause dur="0.2"/> the legal adviser <pause dur="2.3"/> # <pause dur="0.2"/> particularly since the at least whether the <pause dur="0.7"/> police doctor disagreed or not at least we know why the adviser or why the adviser said <pause dur="0.6"/> # this advice was given <pause dur="1.2"/> # <pause dur="0.6"/> critical case in a way isn't it <pause dur="1.0"/> # <pause dur="0.7"/> on the one hand we might <pause dur="0.2"/> say well <pause dur="1.5"/> suspect goes into a police station <pause dur="1.5"/> the moment they get to the police station they're given certain rights they have certain entitlements <pause dur="0.4"/> one of which is to have a lawyer <pause dur="1.2"/> somebody who's <pause dur="0.8"/> supposed to be highly professional and is there to protect their interests <pause dur="0.4"/> and indeed is paid for by the state paid for by legal aid so <pause dur="0.4"/> you get in there <pause dur="0.2"/> do you want a legal adviser yes please <pause dur="0.9"/> what is the legal adviser for he's there to protect your interests <pause dur="1.1"/> does

seem a bit odd doesn't it if we <pause dur="0.7"/> allow for the legal adviser by law we <trunc>s</trunc> <pause dur="0.8"/> tell the defendant <pause dur="0.3"/> you can rely upon this <pause dur="0.2"/> this character the legal adviser <pause dur="1.2"/> and then when the legal adviser's advice is given it would seem very odd if we then said well <shift feature="voice" new="laugh"/>hard luck <shift feature="voice" new="normal"/><pause dur="0.6"/> it was bad advice <pause dur="1.2"/> because # <pause dur="0.3"/> he may have told you to <pause dur="0.2"/> be silent but # hard luck we're going to treat your silence as evidence against you <pause dur="1.1"/> very strange if the defendant was led into that trap <pause dur="1.7"/> on the other hand # looking at it from the alternative perspective <pause dur="1.1"/> # <pause dur="0.2"/> the purpose <pause dur="1.1"/> of changing the law in nineteen-ninety-four <pause dur="1.1"/> was to put pressure on suspects <pause dur="0.3"/> to speak at interview wasn't it <pause dur="2.1"/> now <pause dur="0.8"/> if <pause dur="0.9"/> any legal adviser <pause dur="1.5"/> could simply go into <pause dur="0.8"/> # the police station <pause dur="0.8"/> advise the client to say nothing <pause dur="0.9"/> in the certain knowledge <pause dur="0.2"/> that by doing that <pause dur="0.5"/> the client would be insulated <pause dur="1.1"/> from adverse inferences <pause dur="0.9"/> would be insulated from the adverse effects of being silent <pause dur="0.7"/> # <trunc>i</trunc> <pause dur="0.2"/> if a legal adviser could do that <pause dur="0.4"/> many would say well there's very little having the legislation <pause dur="1.5"/>

if you like the the <pause dur="0.3"/> legal adviser can negate the <pause dur="0.5"/> could be able to negate the effect of the legislation <pause dur="0.4"/> simply by advising silent <pause dur="0.6"/> <trunc>fi</trunc> silence <pause dur="0.4"/> i think that was really the dilemma <pause dur="0.3"/> which the court had to deal with <pause dur="1.5"/> # <pause dur="0.4"/> the approach of the court <pause dur="0.9"/> # <trunc>i</trunc> in a very # <pause dur="0.4"/> important judgement given by # <pause dur="0.6"/> Mr Justice Stuart Lord Justice Stuart-Smith <pause dur="0.8"/> # <pause dur="0.9"/> was to say that <pause dur="1.1"/> # <pause dur="0.7"/> the <pause dur="0.5"/> lawyer's advice did not <pause dur="0.3"/> preclude <pause dur="0.2"/> the drawing of inferences <pause dur="1.2"/> # <pause dur="1.0"/> the court pointed out that <trunc>i</trunc> although the <trunc>advi</trunc> lawyer had advised <pause dur="0.3"/> silence on medical grounds <pause dur="0.9"/> # the police doctor had made known <pause dur="0.5"/> his view <pause dur="0.4"/> the <pause dur="0.6"/> Condrons were fit <pause dur="0.9"/> and that was made known to the Condrons <pause dur="0.7"/> and to the <pause dur="0.2"/> legal adviser so that Condrons would have been aware that the force <pause dur="1.0"/> surgeon the doctor <pause dur="0.2"/> medical expert was saying they were fit <pause dur="1.7"/> # <pause dur="0.9"/> and <pause dur="0.8"/> the <pause dur="1.4"/> the the court was very reluctant to <trunc>a</trunc> allow the # lawyer's advice <pause dur="0.2"/> to be a way of preventing <pause dur="0.4"/> # <pause dur="0.2"/> inferences being drawn <pause dur="0.4"/> and actually used the phrase that <pause dur="0.6"/> # if that was allowed to prevent inferences that would drive a coach and horses <pause dur="0.6"/> through the nineteen-ninety-four

act <pause dur="1.1"/> so very very keen <pause dur="0.4"/> if you like to <pause dur="1.7"/> enforce <pause dur="0.6"/> # this new system of trying to put pressure on defendants to speak <pause dur="2.0"/> # <pause dur="0.6"/> the <pause dur="1.0"/> court <pause dur="0.9"/> # also <pause dur="1.1"/> # had to # <pause dur="1.8"/> deal with # <pause dur="0.6"/> # another issue <pause dur="1.1"/> which was <pause dur="0.2"/> well <pause dur="2.7"/> if <pause dur="1.3"/> the <pause dur="0.6"/> if the defendant wants to rely upon legal advice <pause dur="1.2"/> if the court <pause dur="0.3"/> won't accept it as precluding inferences <pause dur="1.1"/> just as a flat statement my lawyer advised me <pause dur="0.9"/> not to say anything <pause dur="0.4"/> <trunc>wo</trunc> wouldn't accept that <pause dur="1.8"/> could it be possible for <pause dur="0.4"/> # lawyer <pause dur="0.2"/> or the client to give greater details about precisely why legal advice was given <pause dur="1.9"/> if you like <pause dur="0.3"/> could the court get into that <pause dur="0.3"/> collateral issue of <pause dur="0.3"/> why was the advice given <pause dur="1.3"/> court said yes <pause dur="1.3"/> # <pause dur="0.4"/> what the court said was this <pause dur="0.7"/> they said that <pause dur="0.6"/> # <pause dur="1.0"/> legal advice could be at least a factor to be considered by the court <pause dur="0.5"/> in deciding whether or not it was reasonable to draw inferences <pause dur="1.2"/> but <pause dur="0.3"/> if a defendant wanted to rely upon legal advice <pause dur="0.8"/> # it would be necessary <pause dur="0.7"/> to go further than to give a bald statement <pause dur="0.5"/> this is what my lawyer advised me <pause dur="0.6"/> # and to actually give details of why the advice was given <pause dur="1.6"/> now <pause dur="0.9"/> there is a

bit of a problem there <pause dur="1.0"/> which is of course <pause dur="1.1"/> we normally think of the discussion <pause dur="0.8"/> between <pause dur="0.4"/> legal adviser and client <pause dur="0.7"/> as being subject to what we call legal professional privilege <pause dur="1.9"/> and legal professional privilege <pause dur="0.9"/> # <pause dur="0.6"/> is a <pause dur="0.4"/> a right <pause dur="1.5"/> and the person who's been given advice <pause dur="1.2"/> to have the <pause dur="0.7"/> nature of the advice <pause dur="0.9"/> and indeed <pause dur="0.5"/> things passing between the adviser and the client <pause dur="0.4"/> kept <pause dur="0.2"/> secret and confidential <pause dur="1.9"/> so what the court are really saying is well <pause dur="0.7"/> # <pause dur="0.8"/> if you want to rely upon legal <trunc>asvi</trunc> <trunc>as</trunc> <pause dur="0.3"/> legal advice <pause dur="0.4"/> # as a basis for saying that inferences shouldn't be drawn <pause dur="1.0"/> you must tell us what the nature of the advice was <pause dur="0.9"/> # and the court <pause dur="0.9"/> accepted that that would involve waiving <pause dur="0.7"/> legal professional privilege <pause dur="1.3"/> and rather interestingly the court also made it clear that <pause dur="1.1"/> once legal professional privilege had been waived <pause dur="1.2"/> # <pause dur="0.3"/> then <pause dur="0.5"/> it it was waived completely <pause dur="1.1"/> # <trunc>th</trunc> the lawyer and the client couldn't agree <pause dur="0.3"/> for instance <pause dur="0.5"/> as to which bits <pause dur="0.5"/> of the advice session <pause dur="0.7"/> they would tell the court about and which bits they would keep secret <pause dur="1.3"/>

what was suggested in in this case <pause dur="0.7"/> # Condron and Condron <pause dur="0.5"/> and in fact confirmed in a later case called Roble <pause dur="0.6"/> R-O-B-L-E <pause dur="0.6"/> # was that once <pause dur="0.9"/> privilege had been waived <pause dur="0.7"/> then if you like the lawyer and the client <pause dur="0.2"/> be cross-examined about <pause dur="0.3"/> everything <pause dur="0.5"/> that passed <pause dur="0.2"/> between <pause dur="0.4"/> lawyer and client <pause dur="1.7"/> very unusual <pause dur="0.2"/> a very surprising decision in some ways <pause dur="0.3"/> # <pause dur="1.6"/> the notion of legal professional privilege <trunc>h</trunc> <pause dur="0.2"/> <trunc>i</trunc> is is one which is <pause dur="0.4"/> dear to the hearts of many lawyers <pause dur="1.0"/> # in a and in a case called Derby Justices fairly recently the House of Lords <pause dur="0.7"/> # upheld legal professional privilege <pause dur="1.0"/> stating that <pause dur="0.6"/> # if you like it was <pause dur="1.4"/> of paramount public interest <pause dur="0.8"/> that <pause dur="0.6"/> individuals charged with crime should be able to consult lawyers <pause dur="0.4"/> to get advice <pause dur="0.5"/> and <pause dur="0.3"/> be confident that they could be completely frank with their lawyer <pause dur="1.7"/> # <pause dur="2.1"/> in the safe knowledge that what was said would not be disclosed <pause dur="0.6"/> rather interesting this earlier case the House of Lords was saying yes we will uphold legal professional privilege <pause dur="1.3"/> # <pause dur="0.5"/> in Condron and Condron <pause dur="0.5"/> the <pause dur="0.2"/> the Court of Appeal is saying <pause dur="0.5"/>

well <pause dur="0.9"/> if you want to rely upon legal advice you've got to tell us what your lawyer told you <pause dur="0.8"/> what's more <pause dur="0.8"/> # once you've done that the whole of the discussion between lawyer and client can be exposed to cross-examination by the prosecution <pause dur="1.6"/> and of course <pause dur="0.4"/> # <pause dur="0.5"/> that might be <pause dur="0.4"/> # <pause dur="0.9"/> # might be a consequence which many defendants would would wish not to occur <pause dur="0.7"/> they might not wish # their discussions with their lawyer to be <pause dur="0.2"/> disclosed <pause dur="1.0"/> # <pause dur="0.4"/> the effect of Condron and Condron therefore i think is to <pause dur="1.1"/> # <pause dur="0.3"/> create some considerable <pause dur="0.6"/> # dilemmas <pause dur="2.7"/> first of all there are dilemmas for the legal adviser <pause dur="1.5"/> # <pause dur="0.5"/> there may be circumstances where the legal adviser thinks that <pause dur="1.4"/> in <pause dur="0.3"/> his or her client's best interests <pause dur="0.7"/> # it it should be a no comment <pause dur="0.3"/> interview a silent <pause dur="0.2"/> interview <pause dur="1.1"/> # for instance where the # <pause dur="0.4"/> person is incredibly upset <pause dur="0.6"/> young <pause dur="0.2"/> immature <pause dur="0.9"/> # <pause dur="0.2"/> easily suggestible <pause dur="0.7"/> any of these factors may be factors where the the lawyer may say <pause dur="0.6"/> my client wouldn't <pause dur="0.4"/> wouldn't stand up to interrogation <pause dur="0.7"/> might say something which they didn't really mean <pause dur="0.7"/> might be led into <pause dur="0.3"/> into answering <pause dur="0.7"/> in a way they <trunc>d</trunc> wouldn't want to <pause dur="0.5"/> i should advise silence <pause dur="0.8"/> if the <pause dur="0.3"/> lawyer <pause dur="1.5"/> takes that course the the lawyer <pause dur="0.3"/> just

doesn't know what the result would be <pause dur="1.1"/> # <pause dur="0.7"/> really Condron leaves it hit and miss <pause dur="0.5"/> Condron says well if the lawyer advises silent <pause dur="1.2"/> silence <pause dur="1.4"/> the court at a later stage could say well inferences can be drawn or they could accept <pause dur="0.6"/> the lawyer's advice was bona fide and not draw inferences but <pause dur="0.2"/> the lawyer just doesn't know <pause dur="0.9"/> so whereas lawyers normally <pause dur="0.7"/> if you like <pause dur="0.6"/> # are trying to advise on what can be predicted from certain <trunc>cours</trunc> courses of action <pause dur="0.9"/> this makes it very difficult <pause dur="0.2"/> 'cause they wouldn't be able to predict <pause dur="0.2"/> what the result of silence would be <pause dur="2.0"/> secondly <pause dur="0.2"/><vocal desc="clears throat" iterated="n"/><pause dur="0.4"/> # <pause dur="0.5"/> if there was any prospect <pause dur="1.0"/> of <pause dur="0.4"/> the client <pause dur="0.3"/> being <pause dur="0.6"/> wholly or partially silent <pause dur="2.0"/> on legal advice <pause dur="0.9"/> it would seem that the <pause dur="0.5"/> lawyer would have to say to the client well i must warn you <pause dur="1.2"/> if you're going to be silent and you're going to rely upon the advice i've given you <pause dur="1.7"/> bear in mind <pause dur="0.4"/> that if you want to raise that in court as an excuse <pause dur="0.5"/> on the grounds that an inference is not being drawn <pause dur="0.4"/> the court <pause dur="0.9"/> can then have me cross-examined to find out

everything that's passed between us <pause dur="1.0"/> so <pause dur="0.4"/> i warn you if you want to <trunc>rela</trunc> to be silent in interview <pause dur="0.3"/> 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 <pause dur="1.1"/> and of course that is really the antithesis of the <pause dur="0.5"/> professional confidential relationship between lawyer and client we normally expect <pause dur="1.0"/> so that decision really does raise a number of difficulties for legal practice <pause dur="0.5"/> # and for <pause dur="0.2"/> defendants <pause dur="0.8"/> # <pause dur="1.0"/> having said that in terms of <pause dur="1.4"/> furthering the <pause dur="0.3"/> # aims of the government in passing the legislation <pause dur="0.5"/> # it's a very efficient decision doesn't it isn't it <pause dur="1.2"/> # <pause dur="0.4"/> it really minimizes the possibility of escaping inferences <pause dur="1.9"/> # and therefore if you like maximizes <pause dur="0.2"/> the pressure on the defendant to speak <pause dur="2.5"/> # <pause dur="7.1"/> Argent # was a case # <pause dur="0.5"/> discussed in Rosemary Pattenden's article in the # <pause dur="0.5"/> materials <pause dur="0.5"/> # which really follows on from Condron <pause dur="0.8"/> # Argent was a a case where <pause dur="1.1"/> # the defendant was charged with # <pause dur="0.6"/> murder <pause dur="1.8"/> it was a stabbing outside a nightclub late at night <pause dur="1.2"/> # <pause dur="0.2"/> where the defendant <pause dur="1.1"/> # had

certainly been <pause dur="0.3"/> at or close to the scene <pause dur="1.4"/> and had been identified <pause dur="0.4"/> as the assailant by people who knew him <pause dur="1.6"/> # the defendant had been <pause dur="0.3"/> # silent at interview <pause dur="1.7"/> # but later <pause dur="1.1"/> # at # <pause dur="0.4"/> trial <pause dur="0.8"/> raised a <pause dur="0.9"/> a rather detailed <trunc>a</trunc> <trunc>a</trunc> account <pause dur="0.5"/> of his movements after <pause dur="0.5"/> leaving the nightclub which didn't include stabbing the victim <pause dur="0.7"/> all sorts of <pause dur="0.5"/> talking about who he met on the way home how they'd gone to a restaurant but it was shut <pause dur="0.9"/><vocal desc="laughter" iterated="y" n="ss" dur="1"/> and then they'd gone to the fish and chip shop all this sort of thing so there was a very full account <pause dur="0.8"/> # and that was a <pause dur="0.3"/> case where the court accepted that <pause dur="0.8"/> # again was really no <pause dur="0.8"/> # <pause dur="0.3"/> reasonable excuse for the defendant not having <pause dur="0.9"/> given this straightforward account of his movements to the police <pause dur="0.6"/> # and inferences were drawn <pause dur="1.7"/> # it's a useful case in some ways because <pause dur="0.5"/> # <pause dur="0.7"/> the court in that case does set out all the requirements <pause dur="0.7"/> # <pause dur="0.3"/> for drawing inferences although <pause dur="0.3"/> they they in in effect only repeat <pause dur="0.3"/> what is said in section thirty-four <pause dur="1.3"/> let's move on <pause dur="0.6"/> # <pause dur="2.0"/> it is important <pause dur="0.2"/> that <pause dur="1.6"/> # the court <pause dur="0.7"/> have in mind the

particular circumstances surrounding the interview or interrogation <pause dur="1.6"/> if you look at section thirty-four <pause dur="1.5"/> # inferences can only be drawn <pause dur="0.6"/> when in all the circumstances of the interview <pause dur="0.4"/> it would have been reasonable <pause dur="0.4"/> to mention the fact <pause dur="0.7"/> which is later relied upon in court <pause dur="1.2"/> # <pause dur="0.6"/> and so if you like <pause dur="0.2"/> before inferences can be drawn the court really has to analyse <pause dur="0.8"/> # <pause dur="0.9"/> the interview <pause dur="0.3"/> look at what questions were asked what was the state of knowledge of the parties et cetera <pause dur="0.9"/> # and the case of N i think the <trunc>n</trunc> the name's Nicholson it's been reported elsewhere since <pause dur="0.3"/> and <trunc>o</trunc> originally it's just R-V-N <pause dur="0.7"/> # is a case where really the court failed <pause dur="0.2"/> to <pause dur="0.2"/> properly analyse <pause dur="0.6"/> # the state of fact state of knowledge at the time of the interview <pause dur="1.6"/> # what happened in this case was that the defendant was charged with # <pause dur="0.6"/> # a sexual offence with a little girl <pause dur="1.1"/> and <pause dur="0.8"/> # <pause dur="0.2"/> in court <pause dur="0.6"/> the trial judge <pause dur="1.0"/> invited the jury <pause dur="0.7"/> to # <pause dur="0.8"/> draw inferences <pause dur="0.8"/> from the defendant's failure to to give an account <pause dur="0.2"/> at interview <pause dur="1.5"/> and in particular <pause dur="0.9"/> the jury <pause dur="1.0"/> were invited <pause dur="0.6"/> that

they could draw inferences from the fact that the <pause dur="0.6"/> defendant had no explanation <pause dur="1.1"/> for the fact that # <trunc>s</trunc> <pause dur="1.0"/> what was tested to be his semen <pause dur="0.6"/> # was found on the little girl's nightdress <pause dur="1.8"/> so the trial judge said well <pause dur="1.0"/> he was interviewed by the police but somehow or other he didn't mention <pause dur="0.5"/> or he didn't give any any reason any explanation how his semen had got on this little girl's nightdress <pause dur="1.0"/> # <pause dur="0.2"/> the <trunc>s</trunc> court pointed out <pause dur="0.7"/> # <pause dur="0.2"/> at the time <pause dur="0.2"/> of the interview the police had not mentioned <pause dur="0.3"/> to him <pause dur="0.4"/> that semen was found on the nightdress <pause dur="1.2"/> # <pause dur="0.5"/> and so <pause dur="0.2"/> it couldn't really be said that it would have would have been reasonable for him to explain this fact away <pause dur="1.4"/> # <pause dur="0.2"/> if it hadn't been put to him <pause dur="1.6"/> wasn't clear that he would even have known <pause dur="0.2"/> that how it was an issue <pause dur="0.8"/> # and # <pause dur="0.7"/> his conviction was quashed because of the problem that the <pause dur="1.3"/> the # <pause dur="0.4"/> court <pause dur="0.4"/> the jury may have <pause dur="0.3"/> drawn an inference there quite wrongly <pause dur="1.6"/> # <pause dur="8.6"/> # another case i think where <pause dur="0.3"/> # the court really failed to properly analyse <pause dur="0.5"/> whether the if you like the structure of the case <pause dur="0.5"/> and work out whether it was

appropriate to draw inferences under section thirty-four <pause dur="0.5"/> the recent case of Bowers Taylor and Millan <pause dur="0.9"/> # that was a <trunc>c</trunc> a case where the three of them were charged with importing # cannabis <pause dur="1.4"/> # <pause dur="1.3"/> one of them # <pause dur="1.2"/> Bowers i think it was who mysteriously is described as <pause dur="0.2"/> G in my <shift feature="voice" new="laugh"/>notes <vocal desc="laughter" iterated="y" dur="1"/><shift feature="voice" new="normal"/><pause dur="0.5"/> think that should read a B <pause dur="0.7"/> # <pause dur="0.8"/> one of them had failed <pause dur="0.3"/> to <pause dur="0.2"/> give any sort of explanation for fairly incriminating <pause dur="0.6"/> # <pause dur="0.6"/> drug paraphernalia <pause dur="0.8"/> paraphernalia for <pause dur="0.7"/> weighing and cutting and storing drugs et cetera <pause dur="1.5"/> and all three were silent in court <pause dur="2.3"/> all three were silent in court <pause dur="0.7"/> # <pause dur="0.9"/> trial judge <pause dur="0.3"/> invited the jury <pause dur="1.3"/> that <pause dur="0.3"/> they could draw inferences <pause dur="0.9"/> # <pause dur="0.2"/> from <pause dur="0.6"/> failures to explain facts at interview <pause dur="2.9"/> they were convicted and appealed <pause dur="1.1"/> and their criticism of the trial judge's # ruling was that <pause dur="0.7"/> of course <pause dur="0.7"/> section thirty-four applies <pause dur="0.6"/> not simply by virtue of silence in police interview <pause dur="1.1"/> but rather <pause dur="0.2"/> where <pause dur="0.7"/> a defence is raised later in court <pause dur="1.2"/> about which <pause dur="0.3"/> the defendant had been silent in interview <pause dur="1.7"/> so it's not just failure to give an explanation

<trunc>i</trunc> it's a situation where oh you're trying to rely upon a defence in court <pause dur="0.6"/> isn't it fishy that you didn't mention it <pause dur="0.5"/> when you had an opportunity earlier on <pause dur="0.3"/> in interview <pause dur="1.3"/> # <pause dur="0.8"/> and the question rose really whether this was a case where the defendants could have been said to have relied upon any facts <pause dur="0.4"/> in their defence in court <pause dur="1.8"/> what the court said was this they said that <pause dur="1.2"/> it was not a requirement <pause dur="1.4"/> # <pause dur="0.2"/> that the defendant must give evidence in court <pause dur="1.5"/> before section thirty-four can apply <pause dur="2.3"/> as the court pointed out <pause dur="0.8"/> # a defendant can rely upon facts in court <pause dur="0.6"/> in various ways <pause dur="1.5"/> the defendant himself <pause dur="0.7"/> might give evidence of those facts and rely upon them <pause dur="1.3"/> the defendant may call a witness <pause dur="0.6"/> to those facts <pause dur="1.0"/> very often the case <pause dur="0.7"/> the defence make their <trunc>d</trunc> <pause dur="0.5"/> decision of we will call this witness they choose that witness <pause dur="0.5"/> 'cause they're relying upon the facts in that witnesses' statement <pause dur="0.6"/> another way of relying upon facts by way of defence <pause dur="1.0"/> and even <pause dur="0.5"/> # the defendant could <pause dur="0.5"/> rely upon facts which

were elicited from a prosecution witness <pause dur="0.9"/> in the course of cross-examination <pause dur="0.6"/> on behalf of the defendant <pause dur="1.8"/> so <pause dur="0.2"/> it doesn't matter that the defendant's silent in court he can still rely upon facts <pause dur="1.0"/> with the evidence of another witness or perhaps even through cross-examination <pause dur="0.6"/> of a prosecution witness <pause dur="1.0"/> but <pause dur="0.2"/> said the court in this case <pause dur="0.8"/> # <pause dur="0.6"/> here the jury should have been directed not to draw inferences because <pause dur="0.5"/> # as well as the defendant being silent <pause dur="0.6"/> # there <trunc>ha</trunc> really was no reliance upon facts <pause dur="0.6"/> # <pause dur="0.6"/> this really was a case where the <pause dur="0.6"/> # line of defence was just to test <pause dur="0.9"/> the <pause dur="0.3"/> evidence for the prosecution <pause dur="0.9"/> see how far it went <pause dur="0.7"/> # there were no actual factual allegations no alternative <pause dur="0.8"/> # propositions <pause dur="0.8"/> # on which the defence was based <pause dur="0.5"/> # and therefore <pause dur="0.2"/> it wasn't a case in which section thirty-four <pause dur="0.3"/> should have applied <pause dur="2.2"/> # <pause dur="1.8"/> does that makes sense <pause dur="0.8"/> yeah simple enough <pause dur="0.9"/> move on # <pause dur="0.9"/> a very important case i think is # the very recent case or fairly recent case of McGarry in nineteen-ninety-eight <pause dur="2.0"/> # <pause dur="2.9"/> what happened in McGarry <pause dur="0.2"/> was

that <pause dur="7.1"/> McGarry # had been silent in <trunc>cour</trunc> # in in interview <pause dur="3.6"/> and <pause dur="0.9"/> # that fact was made known to the jury at his trial <pause dur="1.1"/> # <pause dur="1.4"/> who heard <pause dur="0.2"/> a a a transcript <pause dur="1.3"/> of the # <pause dur="0.7"/> questions <pause dur="0.7"/> and answers <pause dur="0.7"/> between the police and McGarry so <pause dur="0.6"/> McGarry had been silent in interview <pause dur="0.8"/> and the jury <pause dur="0.5"/> were made known <pause dur="0.9"/> made aware of that <pause dur="0.4"/> rather <pause dur="1.1"/> # <pause dur="1.1"/> the <trunc>jur</trunc> the judge simply left the issue to the jury <pause dur="0.4"/> the question of guilt <pause dur="0.5"/> and didn't say anything about section thirty-four or inferences <pause dur="1.5"/> this wasn't a case where section thirty-four could have applied <pause dur="1.0"/> didn't rely upon any particular <pause dur="0.5"/> facts in court <pause dur="0.3"/> she hadn't mentioned in interview <pause dur="0.6"/> so the judge said nothing about section thirty-four <pause dur="1.1"/> the first round of McGarry's appeal was that <pause dur="1.5"/> if section thirty-four doesn't apply <pause dur="1.7"/> McGarry should be entitled <pause dur="1.0"/> to a judge's direction in his favour <pause dur="1.2"/> telling the jury that no inferences could be drawn <pause dur="3.2"/> so if you like <pause dur="0.7"/> # lawyers <pause dur="0.5"/> in the McGarry case were really saying well okay <pause dur="0.7"/> in certain circumstances inferences can be drawn against the defendant <pause dur="0.9"/> so if you like the law <pause dur="0.7"/> can

operate so as to <pause dur="0.7"/> # <pause dur="0.2"/> create evidence <trunc>aga</trunc> against the defendant <pause dur="0.4"/> but <pause dur="0.5"/> where that doesn't operate where section thirty-four isn't applicable <pause dur="0.9"/> the defendant's entitled to <pause dur="0.4"/> if you like <pause dur="0.6"/> an equivalent protection <pause dur="0.8"/> to prevent juries <pause dur="0.8"/> # <pause dur="0.2"/> off their own back perhaps assuming that silence was in some way evidence of guilt <pause dur="1.0"/> and yes said the Court of Appeal <pause dur="0.4"/> # <pause dur="0.5"/> if section thirty-four wasn't applicable <pause dur="0.7"/> the defendant had been silent <pause dur="0.7"/> # the defendant was entitled to that <pause dur="0.3"/> direction in his favour <pause dur="0.9"/> the judge should tell the jury <pause dur="0.4"/> well members of the jury <pause dur="0.4"/> he's been silent but he's got a right to be <pause dur="0.6"/> and you shouldn't attach any significance <pause dur="0.2"/> to his silence <pause dur="2.1"/> # and that's important <pause dur="0.2"/> # <pause dur="0.9"/> # <pause dur="0.7"/> something which defence lawyers <trunc>w</trunc> will no doubt exploit <pause dur="1.6"/> the <pause dur="1.2"/> second # <pause dur="0.3"/> and perhaps <pause dur="0.3"/> # less <pause dur="0.3"/> focused upon <pause dur="0.2"/> issue in this case <pause dur="1.2"/> # was <pause dur="1.2"/> that the <pause dur="0.3"/> # lawyer <pause dur="0.6"/> advising McGarry <pause dur="0.9"/> # <pause dur="1.2"/> adopted a tactic which <pause dur="0.2"/> has <trunc>w</trunc> had been much discussed <pause dur="0.9"/> and the tactic <pause dur="0.5"/> is <pause dur="0.8"/> to say to the defendant well <pause dur="0.4"/> as an alternative to <pause dur="0.4"/> submitting to interview <pause dur="1.2"/> # you don't you don't want to speak to

the police <pause dur="0.4"/> but <pause dur="0.3"/> it may be a good idea to give your story to <trunc>av</trunc> avoid <trunc>a</trunc> <pause dur="0.3"/> adverse inferences being drawn <pause dur="0.4"/> so as an alternative to answering questions <pause dur="0.9"/> why don't you and i sit down we will <trunc>rep</trunc> <pause dur="0.4"/> prepare a statement <pause dur="0.6"/> of what your defence is going to be <pause dur="1.1"/> walk into the interview room <pause dur="0.9"/> tape switched on caution given saying well here you are police officer <pause dur="0.3"/> here's my statement <pause dur="0.8"/> # i've set out what my defence is there <pause dur="0.4"/> you've got it i'm not going to say anything more <pause dur="0.9"/> and that was the tactic in McGarry <pause dur="1.1"/> and what was interesting <pause dur="0.7"/> in this case was the # <pause dur="0.4"/> the court said well <pause dur="1.4"/> # <pause dur="0.5"/> this was a case where no inferences should be drawn <pause dur="1.0"/> # McGarry did raise a defence in court <pause dur="1.0"/> but it was precisely the one he'd given notification of <pause dur="0.6"/> to the police <pause dur="2.6"/> nothing new <pause dur="1.1"/> # <pause dur="0.7"/> and it was suggested that no inferences could be drawn against the defendant <pause dur="2.1"/> because it couldn't be said that he hadn't notified the police of this defence <pause dur="1.0"/> at the stage of interview <pause dur="2.4"/> let's # <pause dur="1.2"/> let's talk about that <pause dur="1.1"/> well <pause dur="0.4"/> i think it's <pause dur="1.3"/> i suppose from <pause dur="0.4"/> a point

of view of the police project it's a very unfortunate decision <pause dur="1.7"/> # <pause dur="1.6"/> as we said right at the beginning in the introduction <pause dur="0.9"/> # one of the reasons the police campaigned to change the law <pause dur="1.5"/> on silence one of the reasons the police campaigned to <pause dur="0.6"/> # <pause dur="0.6"/> be able to draw inferences from silence <pause dur="0.6"/> # in police interview <pause dur="0.5"/> was that they wanted to be able to put pressure on suspects to speak <pause dur="1.0"/> the idea is they want suspects who are speaking <pause dur="0.7"/> for all sorts of reasons if they speak and raise a defence that can be broken down <pause dur="0.9"/> if they have to speak quickly <pause dur="0.3"/> # <pause dur="0.6"/> soon after the crime they may not may not have time to fabricate a good defence <pause dur="0.4"/> if they <trunc>fabrica</trunc> <pause dur="0.3"/> fabricate a defence on the spot <pause dur="0.4"/> there may be weaknesses in it it may be easy to break that down et cetera <pause dur="0.4"/> so the police really do want <pause dur="0.6"/> to create a dialogue <pause dur="0.2"/> they don't just want to hear what the defence is <pause dur="1.1"/> # <pause dur="0.2"/> if McGarry is followed <pause dur="0.7"/> # it should be possible for defence lawyers <pause dur="0.5"/> to avoid <pause dur="0.7"/> # the risks inherent in a dialogue between <pause dur="0.3"/> police and suspect <pause dur="1.1"/> # and a if you like <pause dur="0.5"/> put

the defence lawyer or the defendant right back in the driving seat <pause dur="0.7"/> # <pause dur="0.6"/> if McGarry's right the defence lawyer lawyer <pause dur="0.3"/> or <trunc>i</trunc> if it's followed the defence lawyer should be able to <pause dur="0.4"/> as it were just construct a good defence <pause dur="0.5"/> a statement <pause dur="0.4"/> and as long as it matches what is said <pause dur="0.4"/> eventually in court <pause dur="0.6"/> # no inferences can be drawn <pause dur="1.6"/> # <pause dur="1.1"/> i'm interested to see really what will happen to McGarry <pause dur="0.6"/> # as i said i think it wasn't quite what the government had in mind <pause dur="1.0"/> # <pause dur="1.1"/> and certainly cause problems for the police and # <pause dur="0.7"/> if you do get judges who are really <pause dur="0.7"/> in favour of the idea that <trunc>s</trunc> suspects really should speak in interview <pause dur="0.7"/> #

then we may find that courts <pause dur="0.4"/> are either overturning McGarry or at least distinguishing it <pause dur="1.0"/> # and of course <pause dur="0.7"/> it would be possible to distinguish McGarry <pause dur="0.2"/> for instance if there was only an outline statement given in the police station <pause dur="0.6"/> where we'd <trunc>bu</trunc> but a much fuller defence with more details given in court <pause dur="0.7"/> # if that occurred <pause dur="0.6"/> # i think it <pause dur="0.5"/> it would be possible to say well <pause dur="1.5"/> the fact that there there was <trunc>o</trunc> this only <pause dur="0.2"/> bare <trunc>out</trunc> only a bare outline might suggest it hadn't been fully worked out <pause dur="0.6"/> maybe an inference can be drawn that it shouldn't be believed <pause dur="0.9"/> who knows <pause dur="0.8"/> # shall we # take a break there and # <pause dur="1.7"/> i'll move on to <pause dur="0.4"/> talk about other inferences <pause dur="0.5"/> after a break