Police interview and inferences from silence 1) Approach

a) What are the options available to the defendant?

1) No comment interview (silence)

2) Answer questions

3) Give a prepared statement and answer no comment in interview

2) Disclosure

3) Evidence

b) What is the approach in analysing which option to recommend?

D.E.A.D approach

What is it?

It is the information that the police give to the defence solicitor before the interview

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There is no automatic right to disclosure

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Defendant does have right to see custody record (COP - Code of practice C 2.4) and the right to see the first description of any identification witness (COP D 3.1)

What impact will disclosure have upon the type of interview given?

a) Where the disclosure has been poor

This could be a reasonable ground on which to advise silence

b) Where the disclosure has been good

Might be advisable to advise to answer questions in order to refute the police's case and to prevent adverse inferences being drawn from defendant's silent

What is it?

It is the evidence, as disclosed, in relation to the elements of the offence under investigation

What analysis should you perform on evidence?

a) Look at the particular offence (e.g. s.1 Theft Act)

b) You should try and form a view as to how strong the case is against the suspect by looking at the elements of the offence

What impact will evidence have upon the type of interview given?

a) The evidence against the defendant is weak

More likely to give a no comment interview as may only lead to incriminating himself where the police are on a fishing expedition

b) Evidence against the defendant is strong

More likely to answer the questions

R v Roble - CoA held it would not be proper to draw inference under s.34 where there has been so little disclosure that a solicitor could not usefully advise the suspect

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