Silence at police station (**.34-7)

What are the 2 main purposes behind s.34?

Discourage D's fabrication of a defence late in the day + encourage D to make quick disclosure of relevant info

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What are 2 big issues with s.34?

D might argue it was an unreasonable expectation (due to lack of memory of relevant fact or unaware of its significance) AND judge needs to be v careful in leaving jury to draw inferences

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Give an example of where D was speculating at trial (so no adverse inferences - like Nickolson), also an example of 1 big issue

MB: MB claimed he didn't know of any motive for V's false allegations, but at trial B came up with a possible explanation. (Relevant issue - unreasonable expectation)

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In what situation should a jury not draw adverse inferences, according to Johnson?

Where D refuses to leave cell to avoid police questioning

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To which situation is Condron relevant?

Where there is a failure to mention facts, based on legal advice received

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There was a failure to mention facts, based in lawyer's legal advice in Condron - what did the court hold?

Drawing adverse inferences from this silence was permissible (they didn't make a huge amount of difference to outcome), conviction was safe

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What did court say in Argent regarding a failure to mention facts following legal advice?

Jury is to look at reasonableness of D's conduct in circumstances

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Which case held that it is a balancing act between: not allowing D to "drive a coach and horses through s.34" by allowing legal advice to be a reason for silence + Ds not having to reveal terms of legal advice if they act in accordance with it

Beckles (No 2)

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What might be waived if D cites legal advice as the reason for his silence?

Legal professional privilege

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In what ways was there a failure to give D a fair trial in Condron?

Jury hadn't been directed that adverse inferences could be drawn if silence couldn't be attributed to C having no answer/no reason that could stand up in cross-examination

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What are 3 of 8 propositions put forward in Seaton?

(1) privilege is of paramount importance, (2) if it isn't waived D can't be asked about anything intruding on privilege, (3) D can choose to waive it, (4) not an entire waiver if D testifies as to what happened between D and solicitor,

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What are the other 4 propositions put forward in Seaton?

(4) as long as its fair another party can comment on fact that solicitor hasn't confirmed D's account, (5) D does partially waive privilege where he adduces evidence of legal advice

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Which case affirmed the legitimacy of prepared statements?

Ali (Sarfraz)

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Is the legitimacy of prepared statements in line with s.34 purpose?

Yes: Knight - provision doesn't intend for adverse inferences to be drawn from reluctance to expose D to questioning

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What is another reason given in Knight to suggest that prepared statements are entirely legitimate?

Police cross-examination doesn't have a huge role in testing truth of D's statement at trial anyway

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What 2 types of statements should we distinguish between?

Prepared statements + defence statements given post-questioning

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Do prepared statements provide 100% protection?

No - might be incomplete or contradict D's later account at trial

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What is the back-up provision for judges, where interview evidence is excluded and so adverse inferences can't be drawn from this?

s.34(b) (Dervish)

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Does s.34 derogate from secondary right to silence?

Yes

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What does Spencer think we should do about the secondary right to silence?

Abolish secondary right - instead have a new rule requiring P to show it is reasonable to draw adverse inferences from silence

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How does Essa say one should consider this topic? (a structure that should be implemented in PQs)?

Can a jury draw an adverse inference? what should judge say?

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Silence at police station (**.34-7)

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