Evidence - Inferences Flashcards
What is an inference in the context of criminal trials?
A common sense conclusion based on the facts. An adverse inference is on that is unfavourable to the D, such as concluding that silence in interview suggests fabrication or guilt.
What does s.34 CJPOA 1994 permit.
The Court or Jury may draw adverse inferences when a D, during police questioning or upon charge, fails to mention a fact they later rely on in court, which the could have been expected to mention at the time.
What are the conditions for drawing an inference?
- D was questioned under caution
- by a police officer
- before charge or upon charge
- about the suspected offence
- the D failed to mention a fact
- that they could reasonably have been expected to mention.
- the fact is later relied upon at trial.
Can an inference be draw from silence outside caution?
No - the standard caution must be given.
Can a prepared statement avoid an adverse inference?
Yes - if the key fact is included in a prepared statement read out at the start of the interview, it can satisfy disclosure requirements even if the rest of the interview is ‘no comment’
Can a suspect’s refusal to attend interview trigger s.34?
No - if a suspect refuses to attend, they are not being questioned, so s.34 cannot apply. But jury may still consider this refusal as part of the wider context
What must prosec do to rely on s.34?
Identify the specific fact that was not mentioned at interview and is now relied upon in defence. A general no comment interview is not enough.
What qualifies as ‘relying on a fact’ at trial?
- the D raises the fact in oral evidence
- a witness for the d raises the fact
- the fact is put in cross of prosec witness
What inferences may be drawn under s.34?
a) the fact was fabricated after the interview
b) the accused had the fact in mind, but avoided scrutiny
c) the accused was choosing between silence, lying, or self-incrimination
Can suspect avoid inference by claiming they followed legal advice?
Not automatically. The court must assess whether it was reasonable to rely on the advice in the circumstances. The jury evaluates if the silence was genuinely based on advice or due to lack of an answer
Does invoking legal advice waive privilege?
Yes - once D explains why they remained silent on legal advice, they waive legal professional privilege on that point.
Can an inference be drawn if the suspect was denied legal advice?
No - s.34 does not apply if the suspect was not given the opportunity to consult a solicitor at the police station or authorised place of detention.
Role of jury in s.34 directions?
The judge decides if an inference can legally be drawn, then instructs the jury on the inference. Jury must decide if it should be drawn in the case.
when should the possibility of a s.34 inference be raised?
before closing speeches, in discussions between judge and counsel, to allow defence to explain the silence in evidence if needed.
s.36 CJPOA 1994 - what does it allow?
A court may draw an adverse inference when a D, on arrest, fails to explain an object, substance or mark on them that may link them to a crime.
conditions for an inference under s.36?
a) d must be arrested
b) the object/substance/mark is on or near the accused
c) it was present at the time of arrest
d) officer reasonably believes its linked to the offence
e) officer informs D of the belief and asks for explanation
f) officer gives a special warning explaining consequences of silence
is reasonableness required in s.36
No - there is no ‘reasonableness’ test like s.34. Only whether the account was provided when requested
what does s.37 CJPOA allow?
A court may draw an inference when a D fails to explain their presence at the scene of the crime or around the time it was committed.
Requirements of a s.37 inference
- D must be arrested
- found near the scene at/around the time
- officer reasonably believed presence is linked to offence
- officer informs d of this belief and asks for explanation
- officer gives special warning explaining consequences of silence
What does s.35 CJPOA allow?
The jury may draw an adverse inference when a D fails to testify or refuses to answer material Qs at trial
Conditions for drawing a s.35 inference?
- D is informed, after prosec closes, that they may testify
- D is warned (in presence of jury) that failure to testify may lead to adverse inference
What inference can be drawn from silence at trial?
That D is guilty of the offence charged
When can’t a s.35 adverse inference be drawn?
When:
- guilt is not in issue
- D’s physical or mental condition makes it undesirable to testify
What is the purpose of a Lucas direction
To warn the jury that a lie does not necessarily equal guilt
