Silence at police station (**.34-7)

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What are the 2 main purposes behind s.34?
Discourage D's fabrication of a defence late in the day + encourage D to make quick disclosure of relevant info
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What are 2 big issues with s.34?
D might argue it was an unreasonable expectation (due to lack of memory of relevant fact or unaware of its significance) AND judge needs to be v careful in leaving jury to draw inferences
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Give an example of where D was speculating at trial (so no adverse inferences - like Nickolson), also an example of 1 big issue
MB: MB claimed he didn't know of any motive for V's false allegations, but at trial B came up with a possible explanation. (Relevant issue - unreasonable expectation)
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In what situation should a jury not draw adverse inferences, according to Johnson?
Where D refuses to leave cell to avoid police questioning
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To which situation is Condron relevant?
Where there is a failure to mention facts, based on legal advice received
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There was a failure to mention facts, based in lawyer's legal advice in Condron - what did the court hold?
Drawing adverse inferences from this silence was permissible (they didn't make a huge amount of difference to outcome), conviction was safe
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What did court say in Argent regarding a failure to mention facts following legal advice?
Jury is to look at reasonableness of D's conduct in circumstances
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Which case held that it is a balancing act between: not allowing D to "drive a coach and horses through s.34" by allowing legal advice to be a reason for silence + Ds not having to reveal terms of legal advice if they act in accordance with it
Beckles (No 2)
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What might be waived if D cites legal advice as the reason for his silence?
Legal professional privilege
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In what ways was there a failure to give D a fair trial in Condron?
Jury hadn't been directed that adverse inferences could be drawn if silence couldn't be attributed to C having no answer/no reason that could stand up in cross-examination
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What are 3 of 8 propositions put forward in Seaton?
(1) privilege is of paramount importance, (2) if it isn't waived D can't be asked about anything intruding on privilege, (3) D can choose to waive it, (4) not an entire waiver if D testifies as to what happened between D and solicitor,
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What are the other 4 propositions put forward in Seaton?
(4) as long as its fair another party can comment on fact that solicitor hasn't confirmed D's account, (5) D does partially waive privilege where he adduces evidence of legal advice
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Which case affirmed the legitimacy of prepared statements?
Ali (Sarfraz)
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Is the legitimacy of prepared statements in line with s.34 purpose?
Yes: Knight - provision doesn't intend for adverse inferences to be drawn from reluctance to expose D to questioning
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What is another reason given in Knight to suggest that prepared statements are entirely legitimate?
Police cross-examination doesn't have a huge role in testing truth of D's statement at trial anyway
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What 2 types of statements should we distinguish between?
Prepared statements + defence statements given post-questioning
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Do prepared statements provide 100% protection?
No - might be incomplete or contradict D's later account at trial
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What is the back-up provision for judges, where interview evidence is excluded and so adverse inferences can't be drawn from this?
s.34(b) (Dervish)
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Does s.34 derogate from secondary right to silence?
Yes
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What does Spencer think we should do about the secondary right to silence?
Abolish secondary right - instead have a new rule requiring P to show it is reasonable to draw adverse inferences from silence
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How does Essa say one should consider this topic? (a structure that should be implemented in PQs)?
Can a jury draw an adverse inference? what should judge say?
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Other cards in this set

Card 2

Front

D might argue it was an unreasonable expectation (due to lack of memory of relevant fact or unaware of its significance) AND judge needs to be v careful in leaving jury to draw inferences

Back

What are 2 big issues with s.34?

Card 3

Front

MB: MB claimed he didn't know of any motive for V's false allegations, but at trial B came up with a possible explanation. (Relevant issue - unreasonable expectation)

Back

Preview of the back of card 3

Card 4

Front

Where D refuses to leave cell to avoid police questioning

Back

Preview of the back of card 4

Card 5

Front

Where there is a failure to mention facts, based on legal advice received

Back

Preview of the back of card 5
View more cards

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