#19561 - 7. Criminal Litigation 2023 2024 Inferences From The Defendant's Conduct - BPC Criminal Litigation (formerly BPTC) 2024/2025

• The trial judge’s summing up conventionally falls into two parts, namely, a direction on the law and a summary of the evidence.

  • The use of written directions is strongly recommended.

• A client may, and their legal advisor must, refuse to give oral evidence or to produce documents relating to two types of confidential communication:

  • Communications between client and legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated at the time, the privilege for such communications being known as legal advice privilege; and

  • Communications between client or legal adviser and third parties, the sole or dominant purpose of which was to enable the legal adviser to advise or act in relation to litigation that was pending or in the contemplation of the client, the privilege for such communications being known as litigation privilege.

• The evidential burden of establishing that a document or communication is privileged lies on the party claiming privilege.

• Exceptions (even public interest) should be allowed on a very limited basis to the absolute and permanent nature of legal professional privilege:

  • The principle can be relied upon only if there is prima facie evidence that it was the client's intention to obtain advice in furtherance of a criminal or fraudulent purpose.

• Communications in furtherance of crime or fraud are a well-recognised exception to the principle of legal professional privilege

Legal Advice Privilege:

• Legal advice privilege protects only direct communications between the client and the lawyer and evidence of the content of such communications, and that in the case of a corporate client, the privilege covers only:

  • Communications with those officers or employees expressly designated to act as 'the client'; and not

  • Documents prepared by other employees or ex-employees, even if they were prepared with the dominant purpose of obtaining legal advice, prepared at the lawyer's request, or sent to the lawyer.

• Legal advice privilege does not cover:

  • Records of time spent with a client;

  • Time sheets or fee records;

  • Records of appointment;

  • Lawyer’s records of a client’s telephone number; and

  • Dates when the client telephoned the lawyer.

Litigation Privilege:

• Privilege is engaged when litigation is in reasonable contemplation; privilege only applies in the case of litigation that is adversarial.

• It covers communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with the conduct of the litigation, provided it is for the sole or dominant purpose of the conduct of the litigation.

• Documents in which such information or advice cannot be disentangled or which would otherwise reveal such information or advice are covered by the privilege.

• It extends to the identity and details of witnesses; a party has a legitimate interest in protecting the identity of witnesses the party intends to call until a late stage in the litigation.

• Privilege will attach to a copy of an unprivileged document if the copy was made for the purpose of litigation and the original is not, and has not at any time been, in the control of the party claiming privilege.

Waiver of Privilege:

• If a document or communication is disclosed voluntarily, privilege will normally be lost.

• The principle governing the loss of privilege in the transaction generally is one of fairness. It is contrary to the interests of justice to allow a person to disclose a limited range of material relating to a particular matter, perhaps chosen to serve the person's own interests, while depriving the other party to the litigation of the full picture which the remainder of the material relating to that matter would disclose.

• It is necessary to identify the confidential communications which the person chose to disclose and see to what extent fairness demanded that other documents or communications should also be disclosed.

• Communications between the accused and their solicitor prior to interviews are subject to privilege: but if the accused wishes to invite the court not to draw an adverse inference from their interview, it is necessary for them to go further and state the reason or basis for the advice. This will amount to a waiver of privilege.

• Lies do not indicate a positive case, but may indicate a consciousness of guilt and therefore, may be relied on by the prosecution as evidence supportive of guilt.

• Lucas Direction: The jury should in appropriate circumstances be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family.

• A Lucas Direction is usually required in four situations:

  • Where D relies on an alibi;

  • Where it is desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, amongst that other evidence draws attention to lies told by D;

  • Where the prosecution seek to show that something was a lie, and to rely on that lie as evidence of guilt; and

  • Although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so.

• Traditionally, D has a right to silence.

• In certain circumstances, adverse inferences may be drawn from the exercise of the right to silence. At the common-law, no inference is permitted to be drawn.

• Circumstances where an adverse inference can be drawn:

  • Failure to mention any fact relied on his defence whilst being questioned under caution, being charged, or being questioned after charge.

    • The provision applies only where a particular fact is advanced by the defence which is suspicious by reason of not being put forward at an early opportunity: s.34 does not apply simply because the accused has declined to answer questions.

    • Also applies where the accused discloses the nature of the defence but fails to mention a particular fact that is relied upon at trial. In such a case there is a discretion whether to deploy s.34.

    • This does not apply where there is no attempt to put forward at trial some previously undisclosed fact.

      • If the judge is in doubt whether counsel is merely testing the prosecution case or putting a positive case, counsel should be asked, in the absence of the jury, to make the position clear.

  • An adverse inference is appropriate only where the jury conclude that the silence can only sensibly be attributed to the defendant’s having no answer, or none that would stand up to questioning.

  • Where the accused may have had a good defence but chose on legal advice to remain silent, no inference should be drawn, but where the jury are sure that the accused had no such defence and 'merely hid behind the legal advice', an inference may be drawn.

• Proceedings cannot be brought to the CC for trial solely on adverse inferences.

• If the prosecution are unable to establish that the accused has failed to mention a fact, the jury should be directed to draw no influence.

• Inferences before the subject is charged may not be drawn except on being questioned under caution by a constable.

• The judge should give a single direction and, if appropriate, combine both a direction for adverse inference and a Lucas direction.

• Magistrates’ Court:

  • Has the defendant relied in his defence on a fact which he could reasonably have been expected to mention in his interview, but did not? If so, what is it?

  • What is his explanation for not having mentioned it?

  • If that explanation is not a reasonable one, is the proper inference to be drawn that he is guilty?

Prepared Statements:

• Where the accused gives a prepared statement in which...