Saunders v R.

A waiver of the right to legal advice at police interview is effective where it is voluntary, informed and unequivocal. The prosecution need not prove that the detainee understood every consequence of proceeding without a solicitor. It is sufficient that the detainee understood that legal advice might assist.

Whether a waiver was informed depends on the detainee’s knowledge and any practical disadvantage caused by missing information. A blanket practice of withholding pre-interview disclosure from unrepresented detainees is too inflexible and may, in another case, undermine the fairness of a waiver. A jury need only be directed to weigh a defendant’s explanation for an omission at interview against the prosecution case, and not to convict wholly or mainly upon that omission.

Saunders v R. concerned convictions on nine counts of fraud by false representation at Inner London Crown Court. The prosecution relied in part on the appellant’s failure, during a police interview without a solicitor, to say that her cousin had been living with her and was responsible for the frauds.

The trial judge refused to exclude the interview under section 78 of PACE 1984. The appellant contended that she had not validly waived legal advice because the interviewing officer would have provided pre-interview disclosure to a solicitor but not to an unrepresented suspect. She also challenged the jury direction on her omission at interview and the use of her previous fraud convictions.

1. The appeal was dismissed. Leave was granted on the waiver ground, but the court held that the appellant had effectively waived legal advice. The governing principle stated in McGowan v B [2011] UKSC 54 is that a waiver must be voluntary, informed and unequivocal. It does not require proof that a detainee appreciated every possible consequence of declining a solicitor.

2. The appellant knew that she could obtain free and independent legal advice, and could request a solicitor at any stage. Her previous experience of police interviews for fraud, intelligence and absence of vulnerability showed that she understood that legal advice might assist. The allegations were sufficiently explained at the interview. Her ignorance of the officer’s practice concerning pre-interview disclosure caused her no real disadvantage on these facts. Even if greater disclosure would have improved her position, that did not itself invalidate the waiver.

3. The court nevertheless rejected the trial judge’s general proposition that pre-interview disclosure is only for a solicitor. Fairness may require disclosure to a detainee so that the detainee knows enough about the enquiry to decide whether legal advice would assist. Police must therefore adopt a flexible approach responsive to the needs of the particular detainee. The officer’s inflexible practice created a serious risk in other cases, although that risk did not affect this appellant.

4. The direction on adverse inference was adequate. The jury had to weigh the prosecution reliance on the appellant’s failure to mention her cousin against her explanation for that omission, and had been told not to convict wholly or mainly on the omission. No fuller standard direction was needed. The court also refused leave on the challenge to the previous convictions: they were relevant both to propensity to commit fraud and to credibility.

• Court of Appeal (Criminal Division): In Saunders v R. [2012] EWCA Crim 1380, the court dismissed the appeal against conviction.
• Inner London Crown Court: The appellant was convicted on 16 November 2011 of nine counts of fraud by false representation. The trial judge refused to exclude her police interview under section 78 of PACE 1984.