Condron & Anor, R v

Factual and Procedural Background

On 2nd November 1995, at the Crown Court at Kingston Upon Thames, the Appellants were convicted by a majority of 9:1 of being involved in supplying heroin (a Class A controlled drug) and possessing heroin with intent to supply. A co-accused was acquitted of the same charges. The Appellants and the co-accused were admitted heroin addicts living in adjacent flats in a residential building. The prosecution alleged a continuing arrangement whereby the co-accused admitted heroin users to his flat, supplied heroin, and obtained the heroin from the Appellants’ flat. Police surveillance between 24th and 28th April 1995, including video evidence, showed interactions between the two flats and visitors to the co-accused’s flat. On 28th April 1995, police raided both flats, finding heroin and paraphernalia consistent with drug supply in the Appellants’ flat, and evidence of heroin use in the co-accused’s flat. The Appellants and the co-accused were arrested and interviewed but all exercised their right to silence, following advice from their solicitor who considered them unfit to be interviewed due to withdrawal symptoms, contrary to a medical examiner’s opinion that they were fit. At trial, the Appellants admitted heroin addiction but denied supplying heroin to the co-accused or others as alleged. The co-accused gave evidence confirming his heroin use and visitors but denied receiving heroin from the Appellants. The Appellants appealed their convictions with leave of a Single Judge.

Legal Issues Presented

1. Whether the trial judge was correct to admit evidence of the Appellants’ "no-comment" interviews despite solicitor advice not to answer questions, and whether adverse inferences could properly be drawn under section 34 of the Criminal Justice and Public Order Act 1994 from their silence.
2. Whether the trial judge’s direction to the jury regarding adverse inferences under section 34 was adequate and correct.
3. Whether the trial judge erred in refusing to discharge the jury following a submission made by the co-accused’s counsel that was alleged to be prejudicial to the Appellants.

Arguments of the Parties

Appellants' Arguments

• The Appellants contended that the evidence of their no-comment interviews should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 because they were unfit to be interviewed, relying on their solicitor’s opinion; this was rejected by the trial judge who preferred the medical examiner’s view.
• They argued under section 34 of the Criminal Justice and Public Order Act 1994 that since their solicitor bona fide advised them not to answer questions due to their unfitness, no adverse inference should be drawn from their silence and the evidence should be excluded.
• They sought to distinguish between tactical and non-tactical reasons for solicitor advice not to answer, submitting that if advice was given for non-tactical reasons (e.g., unfitness), then adverse inferences should not be drawn.
• They criticized the trial judge’s direction to the jury on adverse inferences as insufficiently protective, arguing that the jury should only draw adverse inferences if silence could only sensibly be attributed to fabrication of evidence.
• The Appellants contended the trial judge should have discharged the jury following a submission by the co-accused’s counsel, which they alleged was prejudicial and inconsistent with the co-accused’s evidence.

Crown's Arguments

• The Crown maintained that the Appellants were fit to be interviewed, relying on the medical examiner’s certification, and that the trial judge properly admitted the no-comment interview evidence.
• They argued that it was a matter for the jury, properly directed, to decide whether adverse inferences should be drawn from the Appellants’ failure to mention facts in interview.
• The Crown submitted that solicitor advice not to answer does not automatically exclude adverse inferences and that the reasons for silence are a question of fact for the jury.
• They contended the trial judge’s direction on adverse inferences was consistent with the specimen direction from the Judicial Studies Board and was legally sufficient.
• The Crown defended the trial judge’s refusal to discharge the jury, asserting the submission by the co-accused’s counsel was proper and not prejudicial to the Appellants.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully analyzed the admissibility and effect of the Appellants’ no-comment interviews in light of section 34 of the Criminal Justice and Public Order Act 1994. It accepted that the Appellants could reasonably have been expected to mention certain facts relied upon in their defence during interview, but acknowledged the solicitor’s advice not to answer was based on a bona fide belief of unfitness, despite the medical examiner’s contrary opinion. The Court held that the question of whether adverse inferences should be drawn was properly a matter for the jury, subject to appropriate directions from the judge. The Court found the trial judge’s rejection of the submission to exclude the no-comment evidence was correct, as was the judge’s direction to the jury, which closely followed the Judicial Studies Board specimen direction. Although the Court acknowledged that more detailed directions (such as those in R. v. Cowan) might be desirable in future cases, it found no error in the trial judge’s approach in this case.

Regarding procedure, the Court provided guidance that objections to admissibility on grounds such as section 78 of PACE should be decided before reference to the interview, but objections solely about adverse inferences are generally best addressed after all evidence is heard. The Court emphasized that legal professional privilege attaches to communications with solicitors, and that advice not to answer does not itself waive privilege. However, if the accused asserts the advice as a reason for silence and gives evidence about it, privilege may be waived to an extent allowing exploration of the advice’s nature and reasons.

On the final ground, the Court found no impropriety in the co-accused’s counsel’s submission that the jury could accept parts of the prosecution case and reject others, including the co-accused’s own evidence. The trial judge did not err in refusing to discharge the jury on this basis.

Holding and Implications

The Court DISMISSED the appeal, affirming the convictions of the Appellants.

The direct effect of this decision is that the convictions stand, with the Court confirming the proper approach to admitting no-comment interviews and drawing adverse inferences under section 34 when solicitor advice not to answer is given. The Court provided important procedural guidance on handling challenges to such evidence and clarified the scope of legal professional privilege in this context. No new precedent was established beyond affirming the established principles and recommending more detailed jury directions in future cases.