On 2 November, a blog post from Corker Bining says that the most significant decision a suspect must take when they are arrested, or when they attend an interview under caution voluntarily – do they provide the police with their version of events at the interview, or exercise their right to silence? Whilst determining what advice to give on this issue has always been a matter of judgment, the principles governing the exercise of that judgment have been thrown into confusion by a recent decision of the UK Court of Appeal. If one says nothing, a judge can invite a jury to draw adverse inferences against a defendant if they rely on facts in their defence at trial which they failed to mention when being questioned. This means that a jury is entitled to conclude that the true reason the defendant failed to answer questions in interview is that they had no answer to give – but the article stresses that it does not have to, but that it may draw inferences. The situation is seemingly been thrown into confusion by a case where, in December 2014, the defendant was accused of conspiracy to commit fraud by false representation between 2011 and 2013 in a case related to his solar panel business. The blog says that the decision has upset the previously unambiguous position that the prosecution case must be sufficiently strong to call for an answer before adverse inferences can be drawn from a suspect’s silence. It says that defence lawyers will struggle, if this case is followed, to confidently advise their clients that, where disclosure in complex crime investigations is sparse or incoherent, a no comment interview is likely to be consequence-free at any future trial.
I had omitted the following link (as it did not seem to generate much interest!), but it seemed time to add it again and say that, if you would like to make a (polite) gesture and help me with my removal and computer costs, I have a page at https://www.buymeacoffee.com/KoIvM842y