Inferences

Question 1

Does every suspect have the right to silence?

Answer 1

Yes

Question 2

What is an adverse inference?

Answer 2

Common sense conclusion that is adverse to the interests of the party

Question 3

What are the three adverse inferences?

Answer 3

• section 34 - if a fact is later relied on at trial and it would have been reasonable to have mentioned it now
• section 36 - if there is failure to account for a mark, object or substance
• section 37 - if there is failure to account for presence at the scene

Question 4

What safeguard is there in relation to adverse inferences?

Answer 4

No defendant can be convicted solely based on an adverse inference

Question 5

When can an inference be drawn under s 34?

Answer 5

Allows for an inference to be drawn by the jury or magistrates when D later relies on a fact in their defence that was not offered at the time of questioning

Question 6

What inferences can a court draw?

Answer 6

Court does not have to draw any inferences but any inferences that are drawn have to be proper.

Question 7

What range of inferences are there?

Answer 7

Can range from:

• an acceptance that what D said was true even though they did not offer it up at trial
• that D’s account in court is untrue and they are in fact guilty

Question 8

What form of caution must be given for section 34 notice?

Answer 8

the normal caution

Question 9

For section 34 inferences, what does it mean that it must have been reasonable to have mentioned the fact at the time, bearing in mind all the circumstances of the case existing at the time?

Answer 9

Circumstances at the time should be interpreted widely and include:

• what disclosure had been made to the suspects at the time by police
• what information the prosecution can demonstrate that the suspect knew at the time of questioning or charge
• the condition and circumstances of the suspect
• any legal advice that the suspect received

Question 10

When can an inference be drawn under section 36 or 37?

Answer 10

As soon as there is failure by the defendant to account for their possession of the object in question or presence.

No requirement that there is failure to mention something later relied on

Question 11

What form of warning should be given for an inference to be drawn under s 36 or 37?

Answer 11

They must be given a special warning (ordinary language caution)

Question 12

What elements make up the special warning (ordinary language caution)?

Answer 12

D must be told:

• what offence is being 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

Question 13

What relevance do adverse inference have if there is no trial?

Answer 13

None - no trial then no adverse inference