Practice and Procedure


PUBLISHED March 31, 2003

A judge was right not to exclude evidence of a no comment interview and to give a direction on adverse inference where the defendant claimed the solicitor who advised her had a conflict of interest.Appeal against conviction with leave of the single judge. On 19 June 2002 at Stoke On Trent Crown Court before HH Judge Eades, the defendant ('H') was convicted of possessing a controlled class A drug, namely heroin, with intent to supply. On 8 July 2002 H was sentenced to four and a half years imprisonment. On 21 February 2000 police officers executed a search warrant on property where H lived. Entry was forced through the front door which lead straight into the living room. Four adults were seated around a table where deals of heroin were being wrapped in foil. H was at the head of the table with all the drug paraphernalia before her. She put a foil ball in her mouth, it was later found to contain 0.23 grams of heroin. A further 37 wraps of heroin were found. At the police station H gave a no comment interview. At trial it was the prosecution's case that H had been caught red handed sorting deals, she was at the head of the table with all the paraphernalia before her. H applied to exclude evidence of the no comment interview on the basis that at the time H was represented by the same solicitor as one of the other defendants, ('J'), and there was a conflict of interest, arising out of the fact that J had been interviewed several times and had hinted that she was unable to tell the truth because of what the other defendants might do to her. She hinted that H was responsible for the presence of the drugs. H contended that she had not had the benefit of independent legal advice. The judge rejected the submission and at the end of the trial gave a direction under Criminal Justice and Public Order Act 1994. H appealed conviction on the ground that the judge should have excluded the evidence of the no comment interview. It was not fair or proper to have permitted the jury to draw adverse inferences.HELD: (1) If there had been serious concerns about the advice received from H's solicitor H should have waived privilege and the position could have been explored in a voire dire. The judge would then have been able to make an informed decision. (2) H was trying to get the best of both worlds. The judge had to assume the advice had been given and a conflict had arisen affecting the advice. The judge, and the Court of Appeal, did not know what instructions the two defendants gave to the solicitor and what advice he gave. (3) Based on speculation the judge was asked to conclude that the solicitor acted incompetently. Such a conclusion should not be reached lightly. Even if there had been a conflict there was no reason to think that it could have affected any advice to say nothing. (4) The judge rightly left the jury with the circumstances in which H made a no comment interview, and reminded the jury that it was H's evidence that she had done so on legal advice. The judge was right not to exclude the evidence and right to give a s.34 direction.Appeal dismissed.