Anyone who has ever watched a TV crime drama will know that, when you are arrested, you do not have to say anything but it may harm your defence if you do not mention when questioned something you later rely on in court. And so, through these words, the caution sets up 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 the Court of Appeal’s recent decision in R v Black .
The potential “harm” alluded to in the caution is that, under section 34 of the Criminal Justice and Public Order Act 1994 , 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. However, a key element of the caution is the word “may”. Whilst it may harm your defence if you remain silent, not all “no comment” interviews will necessarily be held against a suspect at their later trial. Section 34 specifies that an adverse inference can only be drawn for facts that, “in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned” (underlining added). Several cases (including R v Condron ) have since clarified that this reasonableness requirement means that an inference can only be drawn if the prosecution case at the time of the interview was sufficiently strong as to justify calling for an answer. A lawyer advising on what, if anything, it is “reasonable” for their client to mention at interview will therefore always do so by reference to (among other matters) the volume and quality of pre-interview disclosure.
The police (and other investigators) have complete discretion as to the extent of the pre-interview disclosure they provide. In a large and complex fraud investigation, disclosure can range from a two-paragraph summary through to tabbed bundles of relevant contemporaneous documents with detailed covering briefings. But where, in a complex case, disclosure is limited, vague, and contains no contemporaneous documents, the advice is more likely to be that the suspect should remain silent at interview, on the basis that, under section 34, the “circumstances” do not “reasonably” require him to provide a detailed answer in response, there being no coherent or properly evidenced allegation to respond to.
And so, to the case of Mr Black, arrested early one morning in December 2014, accused of conspiracy to commit fraud by false representation between 2011 and 2013. The case related to Mr Black’s solar panel business. The allegation was that a number of the representations made in brochures and sales pitches about the degree of investment return (and how that return would be achieved) were false. Pre-interview disclosure consisted of a two-page summary of the police case. Mr Black was, perhaps unsurprisingly, advised to answer “no comment” to the questions put to him in interview. At his trial, a number of years later, when the prosecution evidence amounted to some 75,000 pages, the judge ruled that there were facts that it would have been reasonable for Mr Black to have mentioned at his interview. This ruling was upheld by the Court of Appeal, for the reason that “Mr Black confirmed in cross examination that he had lived through events and he had been given disclosure before the interview”. The Court also noted that “there was no evidence adduced at trial to show that the prosecution case at the time of the interview was insufficient to call for an answer… It is common ground that there was no burden on Mr Black to give such evidence. However the absence of any such evidence meant that there was nothing to rebut the proper inferences to be drawn about the strength of the prosecution case at the time of interview”.
This reasoning is difficult to follow. In at least two ways, it muddies the waters of when a suspect can be reasonably expected to provide an account at interview.
Firstly, it seemingly equates the mere fact that disclosure took place with an inference that the prosecution case at interview was sufficiently strong to call for an answer. This is a fallacy. Whether the prosecution case at interview calls for an answer can only be determined by consideration of the quality of the disclosure (such as the alleged offences identified, the degree of specificity, the provision of contemporaneous documents implicating the suspect etc.). It is our experience that the quality of disclosure provided at interview, especially in large and complex cases, varies greatly, and it is not uncommon for its quality to fall short of reasonably calling for a response. If, as this judgment implies, the quality of disclosure provided at interview is irrelevant – or of less importance than the mere fact that the police gave some disclosure – that would constitute a significant shift in the law.
The implication of this shift is to suggest that unless the defendant at trial can explain why the prosecution case at interview was insufficient to call for an answer, an adverse inference must necessarily follow. This is a novel and disconcerting idea, because it seems to place a de facto burden on a defendant to justify their decision to exercise their right to silence. It also allows the court to abdicate its responsibility objectively to examine the quality of the disclosure and decide for itself whether it was sufficient to call for an answer from the suspect. If this judgment does represent a shift in the law, it is therefore a shift which disadvantages suspects.
Secondly, it introduces a seemingly new relevant consideration to the assessment of reasonableness, namely that the defendant had “lived through events”. This is a troubling inclusion on the court’s list of considerations, because having lived through events has no connection whatsoever with the strength of the prosecution case, or whether it is therefore reasonable to expect an answer. We all “lived through” our A level exams, but that does not mean it is reasonable to expect someone to be able to explain several years later why they underperformed in one of their papers. Suspects interviewed under caution will always have “lived through” relevant events in some shape or form (except in cases of mistaken identity). The suggestion that this is relevant to the reasonableness of answering questions about those events has the practical effect of diluting the right to silence. (The inclusion of this factor reflects an increasingly common attitude in the criminal justice system that defendants “know” if they are guilty or not, regardless of whether they are presented with any evidence of their guilt .)
Finally, the judgment sidesteps the difficult implications it has for the preservation of privilege over legal advice given at the police station. If the fact of pre-interview disclosure per se can be interpreted at trial as establishing a case to answer at interview, the best way to avoid an adverse inference is for the lawyer to state, on tape, during the interview itself, that the pre-interview disclosure does not establish a case justifying a response. However, doing so immediately engages thorny issues of privilege. To make such a statement whilst avoiding disclosing that this is the reason why the suspect has been advised to remain silent is to walk a very fine linguistic (and legal) tightrope. The Court of Appeal recognised this issue, but did not engage with it, stating merely that “Mr Black did not say that he had been given any legal advice to the effect that the evidence was insufficient to justify a response from him (although saying that would have raised issues of legal privilege).” This logic leads to the unsatisfactory result that whether it was reasonable for the suspect to provide an account in interview is less about the court’s objective assessment of the quality of the pre-interview disclosure, and more about how convincingly the defendant on trial can justify his choice to remain silent, including by reference to any legal advice he received to this effect.
The Court of Appeal’s approach in R v Black has thrown the law on adverse inferences into considerable confusion. It has created inroads into 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. 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.
  EWCA Crim 915
  1 WLR 827
 Examples of this attitude arising in practice include: the defence do not need to be shown CCTV of an incident prior to entering a plea because they know whether or not they committed the crime; or the defendant is not entitled to full credit for guilty pleas made any later than the very first appearance in court because they know if they are guilty.
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