Adverse inferences

Question 1

Court/jury may draw an adverse inference from silence if…

Answer 1

A. suspect didn’t mention a fact he’s now relying on for defence during questioning before he was charged, or
B. he didn’t mention the fact on being charged

Question 2

When will an adverse inference from silence not be drawn?

Answer 2

• if the jury believes the suspect genuinely and reasonably relied on legal advice to remain silent, or
• the fact wasn’t one that the suspect could’ve reasonably been expected to disclose at interview

Question 3

When is legal privilege waived at trial?

Answer 3

If the defendant discloses why the solicitor advised him to stay silent

Question 4

Conditions for adverse inference for failing to account for an object/substance/mark being drawn:

Answer 4

A. suspect is arrested and there’s an object/substance/mark on his person/clothing/in his possession/in place at the time of arrest,
B. the constable reasonably believes its presence may be attributable to participation in the offence,
C. the constable informs the suspect of this belief and asks him to account for it, and
D. suspect fails to do so

Question 5

When can an adverse inference from failure to account for a mark/substance/object, or presence at the place and time of offence, be drawn?

Answer 5

If a “special caution” was given before requesting an explanation for it

Question 6

Conditions for drawing an adverse inference from failure to account for presence at a place at/around the time of the offence:

Answer 6

1. suspect arrested was found at a place at/about the time of the offence,
2. constable reasonably believes the presence at that time is attributable to committing the offence,
3. the constable informs the suspect of this belief and asks him to account for it, and
4. suspect fails to do so

Question 7

Is D obliged to give evidence at trial?

Answer 7

No, has right to remain silent

Question 8

When can an adverse inference from D’s silence at trial be drawn?

Answer 8

If D fails to give evidence at trial without good cause

Question 9

What is the exception to drawing adverse inferences from silence at trial?

Answer 9

Court has discretion to prevent them from being drawn if it appears that D’s physical/mental condition makes it undesirable for D to give evidence