It has been over 20 years since section 34 of the Criminal Justice & Public Order Act 1994 was introduced, and an adverse inference could be drawn from a suspect’s silence in a Police interview.
But does such an inference automatically signal the death knell of the defence case at trial?
For those old enough to remember, section 34 was introduced to prevent ambushing by the defence, introducing defences in court that could have been mentioned a lot earlier, and then perhaps escaping investigation.
However, the landscape has changed somewhat now.
The Criminal Procedure Rules require defence lawyers to identify the likely issues at trial as early now as the First Appearance.
Furthermore, a Defence Statement would be considered insufficient (subject itself to an adverse inference) unless the nature of the defence is explained in its body with significant detail.
In R v Condron  1 W.L.R. 827 the Court of Appeal made it clear that an adverse inference could be rebutted if the facts not mentioned in interview, were mentioned promptly soon after, and not later than the trial.
Given the now early disclosure obligations on the defence, it perfectly possible for defence Counsel at trial to seek to rebut any adverse inference by adducing the Better Case Management Form at the Magistrates’ Court.
Notwithstanding this, I am sure that many solicitors and police station representatives reading this could attest to their experience in interviews, with the interviewing officer vigorously trying to explain to their clients that their “no comment” answers will lead to certain conviction.
This is a practice is that is quite intolerably overbearing.
It is quite proper of an interviewing officer to explain the meaning of the caution.
However, it is quite another thing to start explaining in interview the legal effects of section 34.
Arguably that could amount to an attempt to give legal advice, which is itself a criminal offence under the Legal Services Act 2007. I myself would love to have a ROTI read out in Court with the solicitor reminding the Officer that they are being recorded and they are perhaps at risk of committing a criminal offence themselves.
That example though, is perhaps telling of the undue and rigid weight the Police, and CPS, place on an adverse inference to justify their charging decisions.
The problem though is that this can often lead to the situation where the Police do not actually investigate the alleged offence.
I am sure most of those reading have a case right now in their filing cabinet where their client was interviewed before an MG11 statement was taken from the Complainant.
That itself could perhaps justify a refusal to answer police questions on the basis that disclosure is not sufficient. But is that something that could easily be taken advantage of in court?
However, an emerging problem is that even if there is comment made at interview or not, the Police do not always seem ready to investigate the reasonable lines of inquiry that come of it. A classic and recent example is of course Liam Allan, who in his interview mention the text messages that could show is sexual encounters with the complainant were consensual.
This though is perhaps part of the wider issue of fairness that section 34 is too ignorant of.
Many suspects in a Police Station are in a state of confusion, are high on drink or drugs, are coming off drugs, are mentally ill, or are just plain scared. The Health Care Professional at the Police Station is often no more than a nurse with medical training, and yet their advice is often relied upon in the first instance as to whether a suspect is fit to be interviewed.
Some suspects, even if they are telling the truth, lack the articulacy to explain it properly, and convincingly.
As a result, there are a whole host of reasons why a no comment interview is the best option. This perhaps makes it too dangerous to place so much weight on it, as the Police and CPS seem to do.
What all of these problems ultimately equate to is that the legal representative at the Police Station is needed now more than ever.