Ss.34 to 37 of the Criminal Justice and Public Order Act 1994 will allow the court to draw inferences from the suspect's exercise of his right of silence in most cases.

The new rules, which will have an important impact on practice, will be brought into force around 1 March 1995.S.34 - failure or refusal to mention defence to the policeWhere the accused:'(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied upon in his defence in those proceedings; or'(b) on being charged with an offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which...the accused could reasonably have been expected to mention...

the court may draw such inferences from the failure as appear proper.'The policy is obviously to encourage suspects to give their defence to the police when interviewed, for fear that otherwise their defence may not be believed in court.

Under the old law, the judge could not normally make any comment to the jury on the accused's pre-trial silence when charged or questioned by someone in authority (R v Gilbert (1977) Cr App R 237).S.35 - silence at trialIf, at his trial, the defendant does not give evidence, then the court shall satisfy itself that the accused is aware that the stage has been reached at which he can give evidence, and that he understands the consequences if he fails to do so.Thereafter, the court may draw 'such inferences as appear proper from his failure to give evidence or his refusal without good cause to answer any question.'Not only will the judge be able to comment adversely to the jury on the accused's refusal to testify but so will the prosecution, since s.1(b) of the Criminal Evidence Act 1898, which forbade any comment by the prosecutor, is abolished.

S.35 will probably be less important in practice than s.34, since under the old law almost all defendants did give evidence in their own defence at their trial.Ss.36 and 37 - failure to account for incriminating circumstancesIf a constable asks the accused to account for certain incriminating circumstances, and he fails or refuses to do so, then the court may draw such inferences as appear proper.

The provisions are as follows:S.36(1) 'Where: (a) a person is arrested by a constable and there is (i) on his person; or (ii) in or on his clothing or footwear; or (iii) otherwise in his possession; or (iv) in any place in which he is at the time of his arrest, any object, substance or mark, or there is any mark on any such object; and (b) that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and (c) the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark', then if he fails or refuses to do so a court 'may draw such inferences from the failure or refusal as appear proper'.S.37 contains similar provisions, covering the situation where the suspect was found by the police at a place at or about the time the offence is alleged to have been committed.

If the investigating officer reasonably believes that his presence at that place and time may be attributable to his participation in the offence then he may inform him that he so believes, and request him to account for that presence.

If the suspect fails or refuses to do so then a court may draw such inferences as appear proper.These sections have a different effect from s.34.

S.34 tends to undermine the defence case: 'If this alibi is genuine, why did you not mention it at the police station?' Ss.36 and 37, by contrast, strengthen the prosecution case: 'Not only did the police find a jemmy in the defendant's bag, but when they asked him why he had it the defendant refused to say.' Ss.36 and 37 can apply whether or not the defendant puts forward any defence at his trial.Ss.36 and 37 require the police to tell the suspect of the incriminating circumstance, and to request him to account for it.

Presumably this should not normally be done at the time of arrest, but only later in the police station during a tape-recorded interview, in accordance with the usual rules in code C (eg para 11.1).CautionNew codes of practice will also come into force this sprin g, which will lay down a new caution.

The home secretary has published the following draft:'You do not have to say anything.

But if you do not mention now something which you later use in your defence, the court may decide that your failure to mention it now strengthens the case against you.

A record will be made of anything you say and it may be given in evidence if you are brought to trial.'This has been criticised as too long and difficult to understand.

It is possible that the Home Office will come up with a clearer, shorter caution when the new codes are published.Silence alone not enoughS.38(3) states that a person cannot be convicted of an offence 'solely on an inference drawn from such a refusal or failure as is mentioned in ss.34(2), 35(3), 36(2) or 37(2)'.

If the only evidence against the defendant is that he refused to answer questions, then there is no case to answer.SummaryIn some circumstances, it may still be possible to remain silent without inferences being drawn.

The following seem to be the major examples.-- If questioning is other than by the police.

For example, if a suspected shoplifter is arrested and questioned by a store detective, the old law will continue to apply.

Under the old law inferences may be drawn in some cases, where the silence of the suspect amounts to an acceptance of the accusations made (see R v Chandler [1976] 1 WLR 585).-- If the defendant has not been cautioned at the time.-- If the defendant has some good reason for not answering questions.It is also important to bear in mind that the right of silence has not been abolished.

It is simply that exceptions have been created to it.

In some cases ss.34, 36 and 37 simply will not apply.

This would be where the accused does not put forward any facts in his defence at trial, merely saying that he knows nothing about the crime (so s.34 does not apply), and where he was not called upon by the police to explain incriminating circumstances (so ss.36 and 37 do not apply).

But, inevitably, if the defendant did not testify at his trial, s.35 would apply.Tactical considerationsThe criminal law committee of the Law Society has published advice on how the new provisions may change the advice that practitioners give in the police station (see the October 1994 edition of the Criminal Practitioners Newsletter).

It suggests the new law may 'make little difference to the advice you give'.

Some of the key points are as follows.-- 'If your client tells you that he or she is guilty of an offence, and you are unsure whether the police have sufficient and strong evidence...the safest advice remains unchanged: your client should remain silent.'-- 'A judge will not always allow comment to be made about a suspect's silence.' The less articulate a client is, the less capable he or she is of making a reasoned choice, the more likely that a judge will not allow comment to be made.-- There should be no comment at court about the accused's silence when there is an innocent explanation, for example if the accused wanted to protect another person.-- 'If your client remains silent on your recommendation, the court may still infer guilt.

It will be necessary to make sure that the court understands the reasons for the advice to remain silent, by putting them on record at the police station.'ExampleImagine you are called to the police station late at night to advise Joe.

The investigating officer tells you that following a street fight, Joe was arrested nearby.

The other man is in hospital and cannot yet be interviewed.

Joe's shirt is badly to rn and marked.

The police propose to interview Joe.

You speak to your client and he gives you an alibi.-- Should you advise him to answer questions? If he is drunk, or in a highly emotional state of mind, clearly you should object to the holding of an interview at this time and strongly advise your client against answering questions.

However, assuming he is in a fit state, it will be risky to advise silence.

If he puts the alibi forward in his defence at trial, then adverse inferences may be drawn from his failure to mention it to the police (s.34).Furthermore, it is likely that during the interview the police will invoke ss.36 and 37.

They will tell your client that they believe that the damage to his shirt, and his presence at the scene, may be attributable to his participation in the assault and ask him to explain.

The court would be likely to take his silence as being evidence against him.-- Joe decides to refuse to answer questions.

What should you do in interview? The key thing will be for you to make it clear, at the start of the tape, that your client is remaining silent upon your advice, and why that advice was given.

This may make it less likely that the court will draw adverse inferences.-- Can the solicitor submit no case to answer? It is possible that no witnesses will be willing or able to provide evidence against Joe.

In that case, it should be possible to have the case dismissed.

He cannot be convicted solely on an inference drawn from his silence (s.38(3)).

The damaged shirt and his presence near the scene might be regarded as providing other evidence of his guilt, but in this case it seems very unlikely that they would be sufficient to provide a case to answer, even when combined with his failure to account for them.-- At trial, should he give evidence? If there is a case to answer, then the accused will almost inevitably be advised to testify.

If he fails to do so the judge, the prosecutor and any co-accused will all be able to comment.

It could be devastating for the jury to listen to the prosecutor reciting the questions which he or she would have liked to have put to the defendant, and which the defendant is choosing to avoid.-- What will happen at trial if the accused gives evidence? Joe can expect to be cross-examined about his silence at the police station: 'If there is a shred of truth in this alibi then why did you not mention it to the police?' If he replies that his solicitor advised him to remain silent, he may then be asked: 'Why did he or she give you that advice?' At first sight it might seem that Joe need not answer, on the ground of legal professional privilege.

However, it can be strongly argued that the defendant has waived the privilege by giving evidence about his solicitor's advice, hence he can now be questioned on the subject.

It is even possible that Joe could end up calling his solicitor as a witness, to verify his account of the advice he was given.