IInferences Flashcards
What inference may be drawn from a lie?
evidence in support of guilt
indicates consciousness of some kind of guiltW
When should a Lucas direction be given?
whenever a relief upon as evidence of guilt - jury should be reminded that people sometimes lie for a variety of reasons
Where is a Lucas direction not required
where only logical conclusion is guilt
explanation has been offered by the accused and dealt with fairly in summing up
In what 4 circs are Lucas directions likely needed?
- where Defence is alibi
- where judge considers it desirable for suggest jury look for corrob evidence
- where prosecution seek to show something said in or out of court was a lie
- where judge envisages there is real danger prosecution may seek to show something is a lie
What 2 points should be included in a Lucas direction
lie must be admitted/proved beyond reasonable doubt
mere fact of lie is not evidence of the guilt - be sure D did not lie for an innocent reason
What are general principles of the right to silence?
D has right not to incriminate themselves
not compellable at trial
need not assist police with inquiries generally
What are the 4 sections of CJPOA 1994 which enable court to draw adverse inference
S34 - failure to reveal facts relied upon
s35 - silence at trial
s36 - silence on objects/marks
s37 - silence on location
What are the key requirements of s34
before charge - under caution
whilst being questioned
fails to mention fact
D could reasonably have been expected to mention
it
later relied upon for defence
How is adverse inference handled to be compatible with right to a fair trial
direction by judge should be given to jury as to how to handle inference
where right to legal advice withheld (even lawfully) cannot draw - unless waived voluntarily and informed
Can a person be convicted based solely on ANY adverse inference
No - must be other evidence
will not proceed beyond prep in absence of this
what facts are ‘relied upon’
more than just bare denial
anything advance by witness testimony or put as positive case in XX
where reliance on facts is found - what must judge ensure is clear to jury?
the specific failure to mention that fact when asked.
should be discussed with counsel before closing remarks to jury on direction
How should facts put forward in a prepared statement be treated?
cannot be said there was a failure to mention those facts
inconsistencies do not nec amount to reliance on unmentioned facts - judge to be careful
What is key qual for s34 inferences as opposed to s35-8
can be drawn from point of caution - no arrest or charge needed yet
What should be considered when considering whether to draw inference from facts that should have been mentioned?
any reason for not mentioning them
taking into account reasonablness of failure to do so - age, experience, MH, health, sobreity, tiredness, personality
How must ‘legal advice’ to remain silent by construed
not blanket ban on drawing inference - consider reasonableness of circs , why D chose to rely, whether that was reasonable, did D honestly rely on it
does assertion that silence was in reliance of legal advice waive legal advice privilege
bare assertion does not BUT there is often a need to susbtantiate this by disclosing the advice itself and therefore waives privilege
What are most common inferences drawn from silence?
fabrication of defence since interview
unwilling to expose facts to scrutiny due to falsity
choice between silence and lies or self-incrimination
WHat is the model direction under s34
1 - reminder that the accused was cautioned (words of caution)
2 - ID in consultation with counsel of facts not mentioned, reasons for failure and conclusions that are suggested
3 - consider whether prosecution case called for answer
4 - instruction to only draw fair and proper inference and not to convict wholly upon it
What is mags test for s34
1 - has D relied in trial upon a fact they reasonably ought to have brought up earlier
2 - what is the explanation?
3 - if not reasonable, is proper inference guilt?
What to do where silence on fact might also be a positive lie?
consider whether either s34 or lucas direction more appropriate based on facts of the case or combined if needed
What is required for an inference to be drawn under s36 (mark or object)
1 - arrested
2 - ob/sub/mark proximate to person (on them)
3 - o/s/m proximate at time of arrest
4- constable believes o/s/m is attributable to participation in crime
5 - constable informs accused of this belief
6 - constable informs accused in ordinary language of consequences of failure to provide explanation
what is required for an inference to be drawn under s37 (location)
1 - arrested
2 - arrested near location of crime
3 - constable believes presence is attributable to participation in crime
4 - constable informs accused of this belief
5 - constable informs accused in ordinary language of consequences of failure to provide explanation
What inferences may be drawn and when?
proper
- accused has failed to account for relevant matter and any explanatin implausible
what are constraints on s37
must be at/near location at/about time of the commission of the alleged offence
when can s36 operate
at time of arrest, no matter the time that has elapsed since alleged offence
What must happen for s35 silence at trial inference to be drawn
1- d must be told at conc of prosecution case that time has arrived at which they MAY give evidence
2 - be warned that jury may draw adverse inference from this failure - must be done in presence of jury
what inferences CAN be drawn from s35 silence
1 - guilty BUT not WHOLLY on this - prima facie case must exist
When inferences CANNOT be drawn from s35 silence
Ds guilt not in issue (newton hearing)
Physical or MH condition makes it undesirable for D to give evidence (unfit to plead high bar) take into account special measures first
what should direction on silence at trial include
remind jury that inference cannot be drawn unless silence can only be sensibly attribute to accused having no answer or none that would stand up to XX
where the prosecution case is weak what should defence counsel do ?
make application of no case to answer - no adverse inference can be drawn on silence if no case to answer
what might impact strength of inferences made
whether facts clearly call for explanation or are wtihin accused’s knowledge
