Critical Analysis of Silence on Legal Advice and Criminal Justice Act 2003

The Public Interest in Reasonable Disclosure

1. Analyse the question and aim to produce a critical discussion which focuses on the relevant issues.

2. You should include all of the relevant and significant cases on silence on legal advice covered in the module

3. ‘A critical approach in essay-writing engages in arguments and debate about the law. It might involve arguing that a particular understanding of the law is superior to alternatives, that there are reasons to think the current law is good or bad, or, relatedly, that there are persuasive reasons for or against reforming the law. Exactly what is required will, of course, vary depending on the specific question - as with knowledge/understanding, your critical analysis must aim not only to be good, but also focused.

Critical analysis involves taking a view, and backing that view up with reasoning and evidence. There are many components to critical analysis, but the following are amongst the most important features: Critical writing involves taking a view on the relevant issue. The best answers will often develop a sustained central argument. Views that form the basis of critical analysis will be supported by reasoning. A view supported by reasoning is one that is justified through explanation. It almost always involves explaining why a view is true and/or persuasive. It may involve explaining why criticisms of a view are mistaken, or why alternative views are untrue or unpersuasive.   

Views that form the basis of critical analysis will be supported by evidence. Legal sources and academic commentary will be used to support and challenge different views about the law. Evidence used will be evaluated. The level of support that the evidence provides will be assessed by considering the strengths and limitations of the evidence. As for all assessment criteria, critical analysis is not assessed in isolation. To get credit for your analysis, it will need to build upon good knowledge/understanding, it will need to be focused and relevant to the specific question, and it will have to be clearly written, logically structured, and supported by an appropriate range of sources.’  

There is a clear public interest in ‘reasonable disclosure by a suspected person of what he has to say when faced with a set of facts which accuse him’. This public interest is defeated if judicial support ‘is given to the belief that if a suspect remains silent on legal advice he may systematically avoid adverse comment at his trial. And it may encourage solicitors to advise silence for other than good objective reasons.’ Consider whether the above statement is a persuasive defence of the law on silence on legal advice under s 34 of the Criminal Justice and Public Order Act 1994. It is fair and reasonable to bring in the defendant’s bad character where the defence has attacked the character of a person. There are clear safeguards to protect against undue prejudice.’

1. In light of the above statement, evaluate the relevant provisions of the Criminal Justice Act 2003. Nia, a GP, is reported missing when she doesn’t turn up for work. Later that day, Detective SergeantAdebayo arrests Mike, a former patient who has a history of harassing Nia. At the start of the police interview, Mike asks for a solicitor. DS Adebayo responds: ‘I haven’t got time for that. You know how this works, so let’s get on with it.’ After several hours of being questioned, Mike admits that he ‘confronted’ Nia in the heath centre car park the previous day, but he says he hasn’t seen her since then. Mike then refuses to answer any further questions and the interview is terminated.

2. The next morning, Mike chats to Will, a contract cleaner working at the police station. As an ex-addict, Will notices that Mike is suffering from heroin withdrawal. Will advises him: ‘Look, just tell them what they want to hear and they’ll go easy – they might even get you some methadone’ [a prescription drug to ease withdrawal symptoms]. Shortly thereafter, Mike is interviewed a second time. This time, his solicitor is present. Increasingly agitated, Mike says, ‘Look, I’m not saying I’ve done anything. But if something bad happened but it was an accident, would I get less jail time?’  DS Adebayo replies: ‘That’s not up to me. But people who co-operate usually find things easier in court.’ Mike then confesses that he has killed Nia.Prior to his trial for murder, Mike retracts the statements made in both interviews and denies killing Nia.

The defence seeks to have excluded, under the rules relating to confession evidence, the statements made by Mike in both interviews. Consider whether the application is likely to succeed. Guidance on each question follows below: