17. Inferences from D’s silence and other conduct Flashcards
what is a lucas direction for?
to remind the jury that sometimes people lie in order to bolster up a just cause or out of shame/to conceal behaviour
when should a lucas direction be given ?
when a lie told by accused is relied on by pros or by jury to support evidence of guilt rather than just accuseds credibility.
4 situations where lucas direction usually required?
- alibi reliance
- where judge thinks necessary / desirable for jury to look for corroboration in other evidence and that evidence draws attention to lies
- where pros show something was a lie and rely on that lie as evidence of guilt.
- where pros havent done above but real danger jury will.
when is lucas direction not needed?
where rejection of explanation leaves jury no choice but to convict OR where accused has explained and judge dealt with it fairly in summing up
what 2 points should be made in a lucas direction?
- lie must be admitted/proved byrd and
- fact D has lied is not evidence of guilt as they can lie for many reasons
D have a right to silence?
yes. Accused is also not compellable at trial so no duty to assist in their own case.
what statute specifies circs in which adverse inferences can be drawn?
ss34-38 Criminal Justice and Public Order Act 1994
what is the common law rule about inferences?
no inference from silence of accused
what is statutory rule?
jury directed regarding inferences that can be drawn.
what is an adverse inference under s.34?
inference from silence in interview.
when can a s.34 inference be drawn?
Accused when under caution or after charge - when questioned - failed to mention any fact relied on in their defence - and they could have reasonablt been expected to mention when questioned/informed.
can adverse infernece under s.34 apply without lawyer?
no. if they are in a place of detention and D has not been allowed to consult a solicitor.
what does s.34 allow judge/jury to do?
draw such inferences as appear proper
can a conviction be based on silence?
no. no case to answer nor conviction of an offence solely on inference drawn under s.34-38
when is a fact relied on?
- accused gives or adduces evidence of it
- counsel acting on instructions puts specific and positive case to pros witnesses
identification of facts in direction …
where direction is given, must state the facts it relates to.
inference under s.34 when accused gives prepared statement?
Where the accused at the relevant time gives a prepared statement in which facts are given, it cannot be said that there has been a failure to mention those facts.
inconsistencies between the prepared statement and the defence at trial do not necessarily amount to reliance on unmentioned facts
when is adverse inference under s.34 appropriate?
where jury can sensibly conclude silence is due to D having no answer that would stand up to questioning.
when deciding whether fact reasonably ought to have been mentioned consider:
age, experience, mental capacity, health, sobriety, tiredness and personality
does remaining silent in interview on legal advice stop inference?
no. it depends on the view the jury take of the reason advanced by the accuused. genuine reliance on legal advise is not enough to preclude adverse inference
when will accused explaining s.34 silence waive privilege?
- giving evidence at voir dire as to reasons for legal advice
- calling evidence of statement made by sol in interview
bare assertion that legal advice was to remain silent not waiver
what can happen when accused waives privilege?
can be questioned about disclosures to sol
what inferences are allowed under s.34?
“such as appear proper”
- most common = facts invented after interview or
- silence was chosen over lying / self-incrimination
what should a s.34 direction cover?
- reminder that D has right not to say anything
- that they are warned of failure
- the facts not mentioned
- instruct as to whether pros case at time was answerable
- instruct only to draw fair and proper adverse conclusion and cannot convict solely on it
s.34 should be the subject of …
evidence not speculation (give def enough time to gather explanation ev)
what is the 3 stage test for mags to apply with s.34?
- has D relied on fact could have reasonably mentioned
- what is his explanation
- if explanation not reasonable, is the proper inference to be drawn that he is guilty?
what does s.36 CJPO deal with?
inference from failure to account for objects, substances, marks, presence at place
relationship between lucas and s.34?
where something is said which conceals a fact and constitutes positive lie - both required but not fully just select and adapt direction more appropriate to facts and issues in the case
when does s.36 CJPO 1994 apply?
Test:
* where person is arrested and **
* there is a mark/substance on his clothing, footwear, or in possession and **
* constable reasonably believes presence attributable to participation in offence **and **
* constable informs person arrested of belief and requests him to account for it and what conseqquences would be if he failed to do soand
* person fails to do so
inferences can be drawn from judge or jury
what does s.37 CJPO deal with?
inferences from person failing to account for presence near crime scene
when does s.37 apply?
- person arrested
- found at place
- at or about time of offence for which he was arrested was committed and
- constable reasonably believes presence of the person at that place attributable to partic in offence and
- informs person
- and requests for him to account for presence
- and accused told of effect of failure to do so
- and they fail to do so
inference can be drawn.
what inferences can be drawn s.36&s.37?
proper inferences (jury must be satisfied explanation is implausible before inference will be proper)
s.36 only concerned with ..
state of suspect at time of arrest
s.37 applies only…
when accused found at location of crime at or about the time of the commission of alleged offence.
what does s.35 CJPO do?
inferences from failure to testify
when does s.35 NOT apply?
accuseds guilt not in issue
accused has mental/physical condition undesirable for them to give evidence
where does s.35 apply?
- court is satisfied that accused knows it is their time to give evidence
- and that they can give evidence
- and they choose not to or refuse to answer questions
- jury can draw any proper inferences
inferences under s.35 - accused with physical / mental limitations
no inference where condition makes it undesirable for accused to give evidence
general rule it is desirable - voir dire may determine the issue.
proper inferences under s.35 include?
deprived the jury of contradiction or explanation of prosecution evidence
what is the nature of the inference under s.35?
that accused is “guilty of offence”.
can you be solely convicted on s.35 inference?
because s,35 does not happen until close of pros case, they must establish a prima facie case. jury must be told that they must be convinced of the existence of a prima facie case before drawing an adverse inference.
what is required for court to decline adverse inference from silence?
require either ‘some evidential basis for doing so or some exceptional factors in the case making that a fair course to take’
does strength of pros case affect s.35 inference?
no inference of guilt if pros case is of little evidential value
strong inference where facts clearly call for explanation or are within accused’s knowledge.
