Bowden, R v

Factual and Procedural Background

The Appellant was convicted on 15 October 1997 of robbery committed on 10 October 1996 at a McDonald’s restaurant in Ashton-under-Lyne. The robbery involved an attack on a security guard with a claw hammer and the theft of £9,500. The Appellant was identified by two police officers: one who recognized him from photographs taken from a security video, and another who was an off-duty officer present during the robbery who later identified him in a parade. Evidence was also presented that the Appellant booked a holiday to the Canary Islands shortly after the robbery, which the prosecution suggested was financed by the stolen money. The Appellant denied involvement, asserting the holiday was paid for by his mother, and challenged the identification evidence and the prosecution’s case.

The Appellant was interviewed by police on the day of his arrest, accompanied by his solicitor, and declined to answer questions on legal advice. During the trial, the prosecution led evidence of the Appellant’s silence but did not initially disclose the solicitor’s statement explaining the advice to remain silent. The defence introduced that statement to explain the silence, prompting the prosecution to argue that privilege was waived, allowing them to question the Appellant about the factual basis of the advice. The trial judge allowed this questioning and gave directions to the jury concerning the application of section 34 of the Criminal Justice and Public Order Act 1994 in relation to the Appellant’s silence and the solicitor’s advice. The Appellant appealed on the ground that no waiver of legal professional privilege had occurred.

Legal Issues Presented

1. Whether the defence’s introduction of the solicitor’s statement explaining the advice to remain silent constituted a waiver of legal professional privilege.
2. Whether the prosecution was entitled to question the Appellant about the factual basis of the legal advice given by his solicitor.
3. The proper application and scope of section 34 of the Criminal Justice and Public Order Act 1994 concerning adverse inferences drawn from silence during police questioning.
4. Whether the trial judge erred in refusing to hold a trial within a trial to determine the reasonableness of the solicitor’s advice.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that no waiver of legal professional privilege had occurred by the defence eliciting the solicitor’s statement explaining the advice to remain silent.
• The prosecution should not have been permitted to question the Appellant about the factual basis of the solicitor’s advice.
• The trial judge erred in refusing to hold a trial within a trial to assess the reasonableness of the solicitor’s advice.

Prosecution's Arguments

• The prosecution submitted that by introducing the solicitor’s statement, the defence waived legal professional privilege protecting confidential communications.
• As a result, the prosecution was entitled to cross-examine the Appellant on the factual basis of the advice.
• The trial judge correctly allowed questioning and properly directed the jury on the application of section 34.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully analysed the interaction between legal professional privilege and section 34 of the Criminal Justice and Public Order Act 1994. It reaffirmed that legal professional privilege is a fundamental right protecting confidential communications between a client and solicitor, not modified by section 34. The privilege belongs to the client and can only be waived by or on behalf of the client.

The Court distinguished between a mere assertion of legal advice to remain silent, which does not waive privilege, and a disclosure of the factual basis for that advice, which does. It held that when the defence introduced the solicitor’s statement explaining the grounds for the advice to remain silent, the Appellant voluntarily waived privilege. Consequently, the prosecution was entitled to question the Appellant about the factual basis of that advice.

The Court found no error in the trial judge’s decision to allow such questioning or in the jury directions concerning the drawing of adverse inferences under section 34. It also held that the trial judge was correct in refusing to hold a trial within a trial on the reasonableness of the solicitor’s advice, as the reasonableness was a matter for the jury to assess in light of all circumstances.

The Court emphasised consistency with prior case law, which supports allowing examination of the basis of legal advice once the privilege veil is voluntarily withdrawn by the defendant or his authorised representative.

Holding and Implications

The appeal is dismissed.

The Court held that by eliciting the solicitor’s statement explaining the advice to remain silent, the Appellant waived legal professional privilege, permitting the prosecution to question him on the factual basis of that advice. The trial judge’s directions to the jury and refusal to hold a trial within a trial were correct. The decision directly affirms the established principle that privilege is waived only when the client or authorised agent discloses the substance or grounds of legal advice, and that the reasonableness of silence under section 34 is for the jury to determine.

No new precedent was established beyond affirming and applying existing principles concerning legal professional privilege and the drawing of adverse inferences from silence in criminal proceedings.