CLP 3 - inferences Flashcards
Is a solicitor’s role passive
No
What are the adverse inference legislative sections?
34 - fact not mentioned
35 - silent at trial
36 - failure to account for a mark, object or substance
37 - failure to account for presence as a scene
38 - can’t convict solely on inference
s.34 inference - silence when questioned or charged - from what point does s.34 apply?
Only after arrest and caution - (basically at a police interview)
What is s.34?
if a fact is later relied on at trial and it would have been reasonable to have mentioned it now.
Adverse inferences can only be drawn if the defendant could reasonably have been expected to mention facts relied on in their defence.
Reasonableness is assessed by considering factors such as a lack of disclosure by the police (cf Roble [1997] EWCA Crim 118
Genuine inability to recollect the events without reference to documents not at hand/communication with other persons is a circumstance likely to justify silence (Howell [2005] 1 Cr App R 1).
Less likely to be drawn because of his age, state of mind and lack of experience with the police.
In what circumstances does s.34 apply?
criminal proceedings must have started
- occurred after caution
- by an officer regarding the offence
- on or before charge
- defendant relies on a fact at AT TRIAL
- It must have been reasonable to have mentioned the fact at the time of questioning bearing in mind all the circumstances existing at the time.
- NO TRIAL - NO ADVERSE INFERENCE
s.34 It must have been reasonable to have mentioned the fact at the time of questioning bearing in mind all the circumstances existing at the time. What does in ‘all circumstances mean’?
R v Argent [1997].
This case established that “all the circumstances” includes factors such as:
The suspect’s age.
Their experience and mental capacity.
Their physical state, including tiredness or stress.
The circumstances of the questioning itself.
s.36 inference - what is covered by s.36?
Suspect fails to account for an object, substance or mark found on them at the time of arrest.
TIME OF ARREST, NOT VOLUNTEER
How can a prepared statement prevent an adverse inference under s.34 CJPOA 1994?
A prepared statement prevents an adverse inference from being drawn against a defendant at their later trial, provided the facts disclosed in the written statement are consistent with the defence case at trial
Who decides whether an adverse inference will be drawn under s.34 CJPOA 1994?
Jury
s.37 inference - what is covered by s.37
Suspect fails to account for their presence on arrest at a particular place at or about the time the offence was allegedly committed.
Special warning needed
What is needed before s.36 and/or s.37 inferences can apply?
Special warning: “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
S.34 What is detailed in a special warning?
- offence investigated;
- what fact they are being asked to account for;
- this fact may be due to them taking part in the commission of the offence;
- a court may draw a proper inference if they fail or refuse to account for this fact; and
- a record is being made of the interview and it may be given in evidence if they are brought to trial.
s.38 inference - can a person be convicted on inferences alone?
No
When can’t inferences under s.34 s.36 & s.37 be made?
Suspect at a police station at the time of the failure and had not been allowed the OPPORTUNITY to consult a lawyer
Note: its OPPORTUNITY not whether they spoke to a lawyer.
When MUST an ID procedure be held?
Unless known to the eye witness;
- An offence has been witnessed and an eye-witness:
- has identified a suspect or purported to have identified them; or
- is available who expresses an ability to identify the suspect; or
- has a reasonable chance of being able to identify the suspect.
- The suspect disputes being the person the eye-witness claims to have seen.
