9.4: Inferences from Silence

Question 1

Can a defendant be convicted on the grounds of an adverse inference?

Answer 1

No, it must be used together with other evidence

Question 2

When can an adverse inference NOT be drawn from silence?

Answer 2

if the silence occurred at a point when the client was not allowed to consult a solicitor / obtain independent legal advice (s 58 Youth Justice and Criminal Evidence Act 1999)

Question 3

s 34 adverse inferences from silence

Answer 3

1. In any proceedings, evidence shown that accused
   a. BEFORE CHARGED on being questioned under caution, failed to mention a fact which they later relied on in the proceedings
   b. AFTER BEING CHARGED or having been informed he MIGHT be prosecuted, failed to mention facts they could reasonably have been expected to

And there was NO GOOD REASON for the silence

Question 4

Conditions for drawing a s 34 adverse inference from Silence

Answer 4

1. interview had to be an interview under caution
2. defendant had to fail to mention any fact later relied on in his defence at trial
3. the failure to mention this fact had to occur before defendant was charged
4. the questioning of the defendant in the interview in which the defendant failed to mention the fact had to be directed as trying to discover whether or by whom the alleged offence had been committed
5. the fact which the defendant failed to mention had to be a fact, which in the circumstances existing at the time, the defendant could reasonably have been expected to mention when questioned

Question 5

If a defendant fails to mention a fact important to his defence at his first interview, which he later mentions at the second interview - can an adverse inference be drawn from his silence in interview 1 (from s 34)

Answer 5

Yes they can be

Question 6

s 34: If a defendant is silent when they are charged, when will an adverse inference NOT be drawn here

Answer 6

If the defendant had already placed their factual defence on record when interviewed

Question 7

What if a defendant does not want to answer interview questions, but wants to avoid an adverse inference being drawn from their silence under s 34 - what can they do?

Answer 7

Prepare a written statement with their solicitor of the facts they intend to rely on and give it to the police during their interview
- even if they refuse to answer questions ABOUT the written statement

Question 8

If a defendant prepares a written statement with their solicitor but the solicitor does not hand it to the police during interview - does this prevent an adverse inference being drawn from silence?

Answer 8

No, it will prevent the court from drawing the inference of fabrication, but they may still infer that the defendant was not sufficiently confident about their defence at the time of the interview

Question 9

If a defendant is silent in interview because their solicitor tells them to - does this prevent the court from drawing an adverse inference under s 34

Answer 9

No, they ‘should not be drawn’ if defendant genuinely and reasonably relied on this advice but they still can be

Question 10

If the defendant claims in trial that they were only silent in interview because of legal advice given to them - are they protected from cross-examination on the basis of legal privilege?

Answer 10

• if defendant simply says the above statement, legal privilege is in place
• but if defence gives evidence which waives this privilege (such as why the legal advice was given) then privilege is waived and prosecution can Cross examine the client and their solicitor about this / about instructions given to solicitor at police station

Question 11

What happens (wrt inferences from silence under s 34) if the defendant is denied access to legal advice?

Answer 11

Adverse inference cannot be drawn if the defendant did not have an opportunity to consult a solicitor prior to being questioned or charged

Question 12

Adverse inferences under s 36

Answer 12

Section 36 allows the court or jury to draw an adverse inference if, when interviewed by the police, the defendant failed to account for the presence of an object, substance or mark.

Question 13

For the court to raise an adverse inference under s 36 at trial, what must have occurred in the police interview in which the silence occurred?

Answer 13

Police officer requesting explanation must have told suspect:
1. what the offence under investigation is
2. what fact the suspect is being asked to account for
3. that the officer believes this fact may be due to the suspect taking part in the commission of the offence in question;
4. that a court may draw an adverse inference from failure to comply with the request and
5. that a record is being made of the interview and that it may be given as evidence if the suspect is brought to trial (PACE 1984, Code C, para 10.11)

Question 14

Adverse inferences under s 37 CJPOA 1994

Answer 14

Section 37 allows the court to draw an adverse inference if, when questioned at the police station, the defendant failed to account for his presence at a the scene of the offence at or about the time the offence was committed.

Question 15

Which adverse inferences apply irrespective of any defence raised by the defendant?

Answer 15

s 36 and s 37

Question 16

What must have occurred for court to be able to draw an adverse inference under s 37 CJPOA

Answer 16

Only applies if the suspect is given the ‘special caution’ (same as s 36)

Question 17

s 34: when will the court consider it was reasonable for the defendant to be silent when interviewed (not draw an adverse inference)

Answer 17

Potentially
- lack of police disclosure
- weak police case
- complex case
- events occurred a long time ago
- suspect unfit for interview
- age / maturity of suspect

Question 18

Adverse inferences under s 35 CJPOA

Answer 18

A defendant who fails to give evidence on his own behalf at trial may be subject to an adverse inference being drawn by the court or jury under s 35 CJPOA 1994
- If the prosecution has raised issues which call for an explanation from the defendant, (there must be a case to answer)

Question 19

Can a defendant be convicted on the basis of a s 35 adverse inference

Answer 19

Adverse inference here is not sufficient if this is the only evidence against him in trial (cannot convict)

Question 20

Exception to s 35

Answer 20

The court should direct that an adverse inference is not drawn where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence (exception is applied strictly)