Criminal Adverse Inferences

Question 1

When can adverse inference be drawn (general)

Answer 1

1. Failure to mention something in interview you later rely on
2. Failure to give evidence at trial

Question 2

When can adverse inference be drawn from failure to mention something at interview

Answer 2

Only if later used for defence (even if only mentioned by lawyer in cross examination.

1. Only if D could have reasonably been expected to mention it at interview
   - NOT if not questioned
   - NOT if incorrectly questioned (ie interviewer gives wrong facts)
2. Later relies on
   - even if their lawyer mentions it during cross examination

Question 3

When can adverse inference be used if D fails to give evidence at Trail

Answer 3

Not if physical or mental state makes it undesirable

court should be satisfied that D knows that failure may result in adverse inference

Question 4

Court direction before allowing adverse inference due to failure to give evidence at trial

Answer 4

1. Tell jury burden of proof remains on prosecution
2. Defendant has right to silence
3. Inference alone cannot prove guilt
4. Therefore, jury must be satisfied that case to answer has been established
5. Jury to conclude that silence can only be due to D having no answer (that would not stand up to scrutiny)

Question 5

What if defendant was silent at interview due to legal advice

Answer 5

to decide if adverse inference is suitable jury should consider if it was reasonable for defendant to rely on legal advice

Test
1. Did they genuinely rely on (accept/believe) legal advice

2. Was it reasonable for them to rely on legal advice (unreasonable if they did so because they had no excuse etc.)

(May lease to legal advice privilege being waived and lawyer needing to give evidence)

Question 6

Adverse inference and pre-prepared statement

Answer 6

1. Giving preprepared statement (or read out by someone) cannot be seen as refusing to answer police questions
2. No AI if statement is consigned with defence

Question 7

When can adverse inference be drawn from substance, mark etc.

Answer 7

1. substance, mark, object or at scene and reason to believe this is connected to crime
2. Must have been questioned on this under special caution
   - no caution does not apply
   - no legal representative before request does not apply
3. Court determines there is case to answer
   - then can draw adverse inference from this