17. Inferences from the defendant's silence and other conduct

Question 1

What significance are lies told by the accused?

Answer 1

They do not make any positive case of a crime on their own but may support prosecution evidence. Where a defendant has told a lie and the Crown are relying on that, a Lucas direction should generally be given.

Question 2

What is a Lucas direction?

Answer 2

“The jury should in appropriate circumstances be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family.”
The above formula is not a magic one, and may need to be changed depending upon the circumstances of the case. This is done by concentrating on the explanation given for the lie.
Also need not given where it would serve no practical, i.e. where the rejection of the explanation for the lie would inevitably result in a conviction.

Question 3

In what situations is a Lucas direction generally required?

Answer 3

1. When the defendant relies on an alibi
2. When the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant
3. Where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved
4. Where although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so

A Lucas direction is only needed where the prosecution say, or the judge envisages the jury may say, that a lie is evidence against the accused.
Needed in run of the mill cases where the defence case is contradicted by the evidence of prosecution witnesses in such a way as to make it necessary for the prosecution to say that insofar as the two sides are in conflict, the accused’s account is untrue.
Not required simply because the jury may reject a defendant’s evidence as this is covered by the direction on burden and standard of proof.

Question 4

How should the Lucas direction be formulated?

Answer 4

The direction should be tailored to the circumstances of the case, but it will normally suffice to make two points:
1. That the lie must be admitted or proved beyond reasonable doubt, and
2. That the accused lied is not itself evidence of guilty since defendants may lie for innocent reasons, so only if the jury are sure that the accused did not lie for an innocent reason can a lie support the prosecution case

Question 5

What is the right to silence?

Answer 5

An accused person is not a compellable witness at trial and is under no general duty to assist the police with their inquiries. Where the statutory scheme does not apply, there can be no inferences drawn from a defendant’s silence. Where the statutory scheme (Criminal Justice and Public Order Act 1994 s.34-38) does apply, an inference may be drawn but the jury must be properly directed on this.

Question 6

What is allowed by the Criminal Justice and Public Order Act 1994 section 34?

Answer 6

Where, in proceedings against a person for an offence, evidence is given that the accused:
(a) Before being charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied upon in his defence in those proceedings; or
(b) On being charged with the offence or officially informed that the might be prosecuted for it, failed to mention any such fact; or
(c) At any time after being charged with an offence, on being questioned after charge under the Counter-Terrorism Act, failed to mention any such fact
Being a fact that in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged, or informed, as the case may
(a) A judge, in deciding whether to dismiss charges; or
(b) The court, in determining whether there is a case to answer; or
(c) The court or jury, in determining whether the accused is guilty
May draw such inferences from the failure as appear proper

Evidence of the failure may be given before or after evidence of the fact he has failed to mention is admitted.

Question 7

In what other circumstances does section 34 of the Criminal Justice and Public Order Act 1994 apply?

Answer 7

Also applies to other persons charged with investigating offences or charging offenders.
Also applies when an accused discloses the nature of the defence but not a particular fact relied upon for it.
Also may apply when a co-accused wishes to adduce s34
However, it does not apply where the accused was at an authorised place of detention and they had not been allowed an opportunity to consult a solicitor beforehand.

Question 8

Is section 34 of the Criminal Justice and Public Order Act 1994 discretionary?

Answer 8

Yes. Counsel should not complicate trials and summings-up by invoking the section unless the merits of the individual case require it. Equally, judges may take a ‘low-key’ approach to s34 if a defendant immediately discloses his defence but not a particular fact.

Question 9

Is section 34 of the Criminal Justice and Public Order Act 1994 consistent with the Right to a Fair Trial?

Answer 9

Yes, generally. Whether it is compatible is something that should be determined in light of all the circumstances of the case. Important matters including the situations where inferences may be drawn, the weight attached to them, and the degree of compulsion inherent in the situation. Of particular importance are the directions given.
However, failure to give a proper direction will not necessarily involve a breach of Art. 6 nor render a conviction unsafe.

Question 10

Can a failure to allow the accused legal advice but nonetheless taking an inference infringe on the right to a fair trial?

Answer 10

Yes, that is why Section 34 (2A) of the Criminal Justice and Public Order Act 1994 specifically disallows this. An authorised place of detention for these purposes includes police stations and any other place prescribed by order.

Question 11

What does section 38 of the Criminal Justice and Public Order say?

Answer 11

A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer, or be convicted of an offence solely on an inference of silence.

Question 12

What does reliance mean in section 34 of the Criminal Justice and Public Order Act 1994?

Answer 12

Does not apply where there is no attempt to put forward at trial some previously undisclosed fact, i.e. s34 does not apply where an accused puts forward no more than a bare denial.
However, a fact relied upon may be established by a defence witness or elicited from a prosecution witness (i.e. when counsel puts the case to a witness). If there is doubt on whether counsel is putting a case or just testing the prosecution case, the lawyer should be made to make the position clear.

Question 13

How should a jury be directed where the prosecution has failed to show that an accused failed to mention a fact?

Answer 13

They should be directed to draw no inference.
Where there is a direction, care should be made to not include facts on which no inference can be made.
Discussion with counsel should occur before closing speeches.

Question 14

What is the effect of prepared statements on section 34?

Answer 14

They are facts that have been mentioned. It may be dangerous, however, when it is discovered something has been omitted.
Where there is an inconsistency from the prepared statement and the case at trial, this may constitute a previous lie rather than a s34 issue.
Where a bland and nonspecific prepared statement is given, this may be something for a s34 direction to be given on.

Question 15

What inferences may be drawn on silence before charge?

Answer 15

For s34 of the Criminal Justice and Public Order Act 1994, only those which occurred when being questioned under caution by a constable (or someone tasked with investigating offences). If no question have been put, the section cannot be put.
It is not necessary that specific questions be put: merely expressly or impliedly inviting a suspect to give an account of the matter which has given rise to the interview may suffice.
A fact also does not have to be stated in answer to a question for it to have been mentioned.

Question 16

What are facts that should have been mentioned under section 34 of the Criminal Justice and Public Order Act 1994?

Answer 16

Only those facts which, in the circumstances existing at the time, the accused could reasonably have been expected to mention.
If the accused gives evidence, the reason for failing to disclose should be explored before deciding what inferences to draw.
In circumstances where a defendant was not asked about his failure to answer questions at interview (he had tendered a prepared statement), nor was he invited to deal with why he had made no previous mention of particular facts, it is wrong and unfair to decide to give a s34 direction.
Ultimately, an adverse inference is appropriate only where the jury would conclude that the silence can only sensibly be attributed to the defendant’s having no answer, or none that would stand up to questioning.
If the accused’s defence for no mentioning something at interview was that he genuinely thought he had mentioned it, then a direction should reflect that.
When a defendant’s only chance to mention a fact was when a witness’s statement had been read to him in interview without telling him he should correct any statement with which he disagreed, it would be wholly unsafe to rely on an inference. Similarly, if the police make a mistake on the facts which mean an accused should not be expected to put forward any defence he later relies on then no inference should be drawn.

Question 17

What facts may be relevant to which might have been expected to be forthcoming in interview?

Answer 17

The accused’s age, experience, mental capacity, health, sobriety, tiredness, and personality. A restrictive approach is not appropriate.
There is also a contrast between a straightforward case and a complex one.

Question 18

How may the failure of an interviewer to disclose something to an accused or legal adviser when asked impact upon the permissibility of drawing an inference from a defendant’s silence?

Answer 18

It is a factor bearing upon the propriety of drawing it. If little information is forthcoming, an adviser may counsel silence until a better assessment of the case to answer can be made.
However, where the defence is that the person has made it all up there may be an inference drawn as the defendant will at least be aware of what he is arrested for.
Equally, where d is invited to respond to a narrative and not questions this is a relevant factor to explore.
There is no requirement for drawing an inference that the bit of information is specifically one to which the defendant is asked about, but merely whether they could have reasonably been expected to mention it.
Juries are entitled to infer that lengthy questioning would have descended to matters of detail, and the more central the facts that D has failed to mention the more likely an inference should be drawn. Thus, evidence of what questions are not necessary on the facts though desirable.

Question 19

How may the way the case is presented impact upon any inferences?

Answer 19

It may frustrate it. For example, when asked to account for something which may require scientific knowledge.

Question 20

What is the effect on privilege if an accused wishes to explain the reasons for silence following legal advice?

Answer 20

It will be hard to do so. No waiver is involved in a bare assertion that advice had been given to remain silent, though little weight is likely to be attached to such an assertion unless the reasons for it are before the court.
Giving evidence on the legal advice received (such as calling the solicitor) or in a voir dire operate as a waiver of legal privilege at trial.
It is fine in respect of Art 6.
When waiver takes place, an accused may be questioned about disclosures to the solicitor even where it is accepted that legal advice was given solely on the basis of the case as disclosed by the investigator.
The position is different however, where an accused responds to an allegation of recent fabrication by stating that the defence was communicated to the solicitor (no waiver is applicable in this case).

Question 21

What should happen to evidence of the legal advice where it would reveal a defendant’s bad character?

Answer 21

Where the case is not on in which evidence of bad character is otherwise admissible, it will be necessary to consider whether to exclude some or all of the evidence relating to the failure to mention facts to avoid unfairness.

Question 22

What directions should be given to permissible inferences?

Answer 22

It should be ‘such inferences from the failure as appear proper’ so long as it doesn’t wholly or mainly constitute a finding of guilt/case to answer.
The jury may infer that an accused had the facts in his mind but did not want to expose them to scrutiny, or faced with a choice of on one hand silence or, on the other, further incrimination or lying. Equally, they may infer recent fabrication.

Question 23

What should the court’s approach be where the accused attributes failure to mention facts to acting on legal advice without explaining the reasons behind the advice?

Answer 23

The judge should be careful to avoid directing the jury in such a way as to indicate that silence is necessarily a guilty one. Provided the trial judge has given the proper directions in relation to s34, fair comment may be made. The judge is not obliged to ‘sit quiet’.

Question 24

How may a failure to disclose facts following legal advice impact upon any inferences?

Answer 24

The consistent them in the authorities is that whether inferences are drawn depends on the view the jury take of the reason advance by the accused as to whether the silence can only sensibly be attributed to the accused having no answer, or none that would stand up to questioning.
‘genuine reliance by a defendant on his solicitor’s advice to remain silent is not in itself enough to preclude adverse comment’
In Hoare, the defence to producing a Class B drug was that D believed he was involved in the secret production of a cure for cancer. D had given a ‘no comment’ interview following legal advice, the solicitor apparently having thought that there was insufficient disclosure of the evidence against D at that stage. Under cross-examination, D said that, while he could have given his explanation at the time, he had been stunned and surprised, had not had much sleep, and ‘most people would act on the advice of their lawyer’. The true question, however, according to Hoare, is not whether D’s solicitors rightly or wrongly believed that D was not required to answer the questions, nor whether D genuinely relied on the advice in the sense that he believed he had the right to do so. The true question is whether D remained silent ‘not because of that advice but because he had no or no satisfactory explanation to give’.

Question 25

What directions should be given where s34 is applicable?

Answer 25

A clear judicial direction will be required as to the nature of the inferences that may be properly drawn.
This may include:
(1) a reminder that the accused was cautioned that he or she did not have to say anything, and therefore had a right to say nothing, but was also warned that conclusions might be drawn from failure to mention facts later relied on;
(2)
(a) the identification in consultation with the advocates of the facts which were not mentioned but are now relied on in defence together with;
(b) any reasons given for the failure to mention those facts; and
(c) the conclusions it is suggested might be drawn (usually that the fact has been made up after interview and is not true);
(3) an instruction to consider whether the prosecution case as it stood at the time of the interview clearly called for an answer, and if it did, to consider whether, taking account of any explanation given by the accused, there was no sensible explanation for the failure other than that the accused had no answer at the time or none that would stand up to scrutiny.
(4) an instruction only to draw an adverse conclusion if it is ‘fair and proper’ to do so, and in any case not to convict the accused wholly or mainly on the strength of it
The direction in the magistrates court is:
(1) Has the defendant relied in his defence on a fact which he could reasonably have been expected to mention in his interview, but did not? If so, what is it?
(2) What is his explanation for not having mentioned it?
(3) If that explanation is not a reasonable one, is the proper inference to be drawn that he is guilty?

Question 26

What should happen if the judge thinks an inference may be relevant in the case?

Answer 26

Where prosecution counsel had not sought to rely upon s. 34, and had not raised the matter with the accused in cross-examination, the Court of Appeal in Khan [1999] 2 Arch News 2 rightly ‘deprecated’ the decision of the trial judge to direct the jury that they might draw an inference under s. 34 without having raised the matter with counsel. It was held, however, that (as there would have been no basis upon which the judge could have been deterred from giving the direction had the matter been argued) D had suffered no disadvantage. It is submitted that this is a dangerous approach. A trial judge ought not, in fairness, to leave it open to the jury to make use of silence which, because the defence did not expect to have to explain it away, has not been the subject of any comment by the accused or the defence witnesses. If the judge thinks that s. 34 might come into play, the matter should be raised in time for it to be the subject of evidence not speculation. If, on the other hand, there has been no discussion with counsel of the intended direction in circumstances where it is clear to the defence that the prosecution are relying on the accused’s failure to mention a specific fact, it is unlikely that the omission will render the trial unfair

Question 27

What happens if the defendant says something that is both a lie and conceals a fact later relied upon?

Answer 27

A direction may also be called for in relation to something said by the accused which the prosecution claim both conceals a fact later relied on and constitutes a positive lie. In such a case the facts may require that both a s. 34 direction and a Lucas direction.
The protective nature of the Lucas direction was cited in Spottiswood [2019] EWCA Crim 949 as a reason for giving the directions in combination where the lie and the failure to mention facts raised slightly different, albeit interrelated, issues for the jury. The Court endorsed the approach in Rana and the combined directions in the Crown Court Compendium, ch. 16-3. Where separate directions are given, it is important that they should be consistent (Stanislas [2004] EWCA Crim 2266). In Taskaya [2017] EWCA Crim 632, the Court of Appeal accepted, without encouraging the practice, that a trial judge might give both directions provided that each direction guarded against impermissible inferences.

In Wainwright [2021] EWCA Crim 122, the Court of Appeal emphasised that Hackett was concerned with a straightforward situation where D had failed to mention matters on which he later relied, by telling in interview what was contended to be a lie, and by giving the same explanation for his failure to mention a fact and for what was contended to be a lie. In such a case it is preferable to give a single direction—appropriately modified, if necessary—to combine the Lucas and s. 34 directions, where it is feasible and convenient to do so. It is ultimately a question for the judge to determine whether a dual direction or two separate directions best fits the facts and circumstances of the case

Question 28

What does section 36 of the Criminal Justice and Public Order Act 1994 allow for?

Answer 28

(a) Where a person is arrested by a constable and there is:
 On his person; or
 In or on his clothing or footwear; or
 Otherwise in his possession; or
 In any place in which he is at the time of his arrest
Any object substance or mark, or there is any mark on any such object and
(b) That or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participating of the person arrested in the commission of an offence specified by a constable; and
(c) The constable informs the person arrested that he so believes, and requests him to account for its presence; and
(d) The person fails or refuses to do so, then if, in any proceedings for the offence so specified, evidence of those mattes is given
Then
* A judge, in deciding whether to dismiss charges; or
* The court, in determining whether there is a case to answer; or
* The court or jury, in determining whether the accused is guilty
May draw such inferences as appears proper
This applies to condition of clothing or footwear.
Does not apply if was not told in ordinary language if was not told what the effect would be if he refused to comply.
If at an authorised place of detention, this does not apply if he had been refusd legal advice.
Applies to customs and excise officers.

Question 29

What does section 37 of the Criminal Justice and Public Order Act 1994 allow for?

Answer 29

(a) Where a person arrested by a constable was found by him at a place or about the time the offence for which he is arrested is alleged to have been committed; and
(b) That or another constable investigating the offence reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence; and
(c) The constable informs the person that he so believes, and requests him to account for that presence; and
(d) The person does so
Then
* A judge, in deciding whether to dismiss charges; or
* The court, in determining whether there is a case to answer; or
* The court or jury, in determining whether the accused is guilty
May draw such inferences as appears proper.
Does not apply unless told in ordinary language what the effect of the refusal would be.
Applies to customs and excise as well.
Where the accused was at an authorised place of detention and was refused their solicitor before hand, no inferences can be drawn.

Question 30

What four conditions allow for an inference to be drawn under section 36 or 37 of the Criminal Justice and Public Order Act 1994?

Answer 30

(a) The accused is arrested
(b) a constable (not necessarily the arresting officer) reasonably believes that the object, substance or mark, or the presence of the accused at the relevant place, may be attributable to the accused’s participation in a crime (in s. 36 an offence ‘specified by the constable’; in s. 37 the offence for which he was arrested);
(c) The constable informs the accused of his belief and requests an explanation of the matter in question;
(d) the constable tells the suspect in ordinary language the effect of a failure or refusal to comply with the request.
The four conditions may, on their face, be satisfied where an arrested person is confronted with incriminating circumstances before being taken to the police station for interview. However, a request for information under the two sections would appear to be a form of questioning, and because an arrested suspect should not normally be questioned about involvement in an offence except in interview at a police station or other authorised place of detention (PACE Code C, para. 11.1) the tendering in evidence of an unproductive request for information ‘on the beat’ should be the exception rather than the norm. If such a request is made and is alleged to have yielded a silence from which inferences can properly be drawn, the procedure for putting the silence to the suspect in a subsequent interview at the police station will apply

Question 31

What proper inferences may be drawn under section 36 or 37 of the Criminal Justice and Public Order Act 1994?

Answer 31

The jury must be satisfied the accused has failed to ‘account’ for the relevant matter and that any explanation advanced by the accused should be rejected as implausible before an inference can be said to be proper. The strength of an inference increases with the suspicious nature of the circumstances.
The amount of time between the incident and the arrest may not be relevant provided that the inference remains relevant (i.e. scarring on a chest after being shot in 1981 was relevant in 2010).

Question 32

What does it mean when a jury cannot convict wholly or mainly on inference?

Answer 32

Not quite clear. Appears the intention is to prompt the judge to tell the jury not to convict just because the accused has been unhelpful.

Question 33

May the failure of an accused to testify be counted against him?

Answer 33

Yes, under section 35 of the Criminal Justice and Public Order Act 1994.
The nature of the inference available will depend on the way in which the evidence has developed and the strength of the prosecution case. A careful direction will be needed

Question 34

What does section 35 of the Criminal Justice and Public Order Act allow for?

Answer 34

At the trial of any person for an offence, unless the accused’s guilt is not in issue or it appears that the physical or mental condition of the accused makes it undesirable for him to give evidence,
Or, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence, or where unrepresented, the court ascertains from him that he will give evidence
The court shall satisfy itself (on indictment, in the presence of the jury), that the accuse dis aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, given evidence, and that, if he chooses not to or having been sworn without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper.
The accused, however, it not compellable to give evidence on his own behalf and so cannot be found guilty of contempt of court by reasons of a failure to do so.
A person does not have good cause unless he is entitled to effuse by virtue of any enactment, or on the ground of privilege, or the court in the exercise of its general discretion excuses him from answering it.
CrimPD 6.7 (see Supplement, PD6.7) provides guidance on the procedure to be followed regarding the defendant’s right to give or not to give evidence. The court is obliged to satisfy itself that defendants who have not indicated that they intend to give evidence understand the consequences of declining to do so (s. 35(2) and (3) and CrimPD 6.7.1).

The court’s obligation in s. 35(2) to satisfy itself that the accused knows of the entitlement to give evidence is mandatory and cannot be overlooked even where the accused has absconded (Gough [2001] EWCA Crim 2545).
Thus what matters, for the purposes of the requirement in s. 35(2) that the court should satisfy itself that the accused is aware of the possible consequences of a decision not to testify, is that the accused has had the necessary legal advice.

Question 35

What are proper inferences under section 35 of the Criminal Justice and Public Order Act?

Answer 35

Subject to these exceptions, the accused must answer all proper questions or risk the drawing of inferences, and a judge may remind the accused of this duty, though not in an oppressive way (Ackinclose [1996] Crim LR 747).
An observation that the accused has, by failing to give evidence, deprived the jury of contradiction or explanation of prosecution evidence can only fairly be made if the uncontradicted evidence concerns a matter about which the accused can confidently be expected to have personal knowledge.

Question 36

What happens re section 35 of the Criminal Justice and Public Order Act when there are accused with physical or mental limitations?

Answer 36

A defendant who wishes to give evidence must be given a full and fair opportunity to do so. A direction that no adverse inference should be drawn was not an adequate countermeasure where D’s trial had continued despite his hospitalisation, denying him the right to testify.
Equally, there will be cases where the accused’s physical or mental condition make it undesirable for him to give evidence, and in such cases no inference should be drawn.
The provision was considered in Friend [1997] 2 All ER 1011. D was tried for murder. He had a physical age of 15, a mental age of nine, and an IQ of 63. Expert evidence suggested that, although not suggestible, his powers of comprehension were limited and he might find it difficult to do justice to himself in the witness-box. Nevertheless D had given a clear account of his defence at various stages prior to trial. Taking all these matters into account, the trial judge ruled that D’s mental condition did not make it ‘undesirable’ for him to give evidence, so that his failure to do so led to the jury being directed that they might draw inferences under s. 35(3). The Court of Appeal agreed, noting that it would only be in a rare case that the judge would be called upon to arrive at a decision under s. 35(1)(b): an accused who was unable to comprehend proceedings so as to make a proper defence would be unfit to plead, so the issue would not arise.
Ultimately, measures can be taken by which vulnerable defendants can, if their needs are correctly assessed, be protected from unfair or oppressive cross-examination.
The possibility of using an intermediary to overcome communication difficulties also weighs in the balance in favour of the giving of evidence.
In the rare case where the physical or mental condition of the accused makes it inappropriate to draw adverse inferences, the jury should be specifically directed to this effect (Crown Court Compendium, ch. 17-5). One such rare case was Hamberger [2017] EWCA Crim 273, in which D, who suffered from angina, was fit to be tried but not to testify, and it was agreed that no adverse inferences should be drawn
A history of self-harm and PTSD does not render it undesirable for D to give evidence.
The provision requires that the accused’s physical or mental condition is such that if they were to give evidence it would have a significantly adverse effect on him’
A voir dire may be needed to determine the issue. In R (DPP) v Kavanagh [2005] EWHC 820 (Admin), it was doubted whether, even in summary trial, non-expert evidence (such as that of a family member) as to the mental condition of the accused could be sufficient.

Question 37

What inference may be drawn under section 35 of the Criminal Justice and Public Order Act?

Answer 37

That the accused is guilty of the offence charged. As to what is a proper inference:
“If there is no prima facie case shown by the prosecution there is no case to answer. Equally, if parts of the prosecution case had so little evidential value that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt.

On the other hand, if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty.”

Question 38

Is there a restriction on how far an inference drawn under section 35 of the Criminal Justice and Public Order Act may be taken?

Answer 38

It may also not be the sole reason for a conviction. The prosecution are under an obligation to establish a prima facie case before any question of the accused testifying is raised and it is the jury that must be convicted first.
In a case where there is a compelling case for the accused to answer it has been held that a failure to direct on the solely or mainly part will not render the conviction unsafe.
The power to draw an inference under the DVCVA 2004, s. 6(2) or s. 6A(2) (see F20.44), was considered in Quinn [2017] EWCA Crim 1071, in which the trial judge commented not only on the failure of the accused to testify but also on their failure to give any account when interviewed of the events leading to the death of V following an assault in the home they shared, saying (at [61]) ‘they do not have to but you may think they could and chose not to and you have every right to ask why’. The comments were held to be ‘reasonable’ in the circumstances, or at least not ‘unduly prejudicial’. The comments appear to go beyond what is sanctioned by s. 6(2) which applies to the failure to ‘give evidence or refusal to answer a question’.

Question 39

What is the general rule for drawing an inference under section 35 of the Criminal Justice and Public Order Act?

Answer 39

That it applied to an overwhelming majority of cases.
However, it is open to a court to which the exception s35(1) did not apply to decline to draw an inference from silence, though for a judge to advise a jury against drawing such an inference would require either ‘some evidential basis for doing so or some exceptional factors in the case making that a fair course to take’.
An inference cannot be drawn unless the jury decide that the silence can only be sensibly be attributed to the accused having no answer, or none that would stand up to cross-examination.
In Winston [2015] EWCA Crim 524, the Court of Appeal restated the importance of following the Cowan direction, currently set out in the Crown Court Compendium, ch. 17-5, so as not to leave the jury with the impression that an inference could be drawn in any other case, such as where the accused’s testimony would merely have been ‘of assistance’ to them.
Cowan was applied in Napper (1997) 161 JP 16. D claimed that the failure of the police to interview him while the frauds with which he was charged were reasonably fresh in his mind should have led the judge to direct the jury to draw no adverse inferences from his silence at trial. It was held that this was not, under Cowan, an exceptional case where such a direction would have been justified in the interests of justice. Nothing prevented D from making his own record from which to refresh his memory, and the crucial issues were in any case sufficiently memorable to present him with no difficulty of recollection.
The House of Lords in Becouarn [2005] UKHL 55 endorsed the practice of giving a s. 35 direction notwithstanding that D had made a tactical decision not to testify in order to keep his bad character from being revealed

Question 40

What inferences can be drawn when the prosecution case is weak?

Answer 40

Inferences of guilt should not be drawn from failure to give evidence to contradict a prosecution case of ‘little evidential value’.
However in RS v DPP [2013] EWHC 322 (Admin), the Divisional Court rejected an argument that no inferences should be drawn from the failure of a child to testify in a case of robbery of a mobile phone that depended on the correctness of an identification substantially based on hearsay evidence. It was held that, once it had been decided that there was a case to answer, the failure of D to give evidence about relevant matters in his police interview (in the absence of evidence of a reason for his silence) made the drawing of an inference permissible.

Question 41

How strong is the inference where facts clearly call for an explanation or are within the accused’s knowledge?

Answer 41

Stronger comment may be justified.

Question 42

(Simply) what does s34 CJPOA refer to?

Answer 42

Failure to mention facts later relied on.

Question 43

(Simply) what does s35 CJPOA refer to?

Answer 43

Silence at trial.

Question 44

(Simply) what does s36 CJPOA refer to?

Answer 44

Failure to account for objects, substances, marks.

Question 45

(Simply) what does s37 CJPOA refer to?

Answer 45

Failure to account or refusal for presence.