Inferences from Silence

Question 1

There is a General Rule that a suspect has a RIGHT TO REMAIN silent. However:

(1) What can the Magistrates / Jury potentially draw from a suspect remaining silent?
(2) What 3 pieces of legislation can this be drawn under?

Answer 1

(1) Adverse Inferences
(2) Criminal Justice and Public Order Act (1994) (CJPOA 1994)
(a) S34 CJPOA 1994
(b) S36 CJPOA 1994
(c) S37 CJPOA 1994

Question 2

What is the GENERAL rule on whether a suspect has the ‘Right to Remain Silent’

Answer 2

PRIMA FACIE Right to Remain Silent

Question 3

Can a suspect be convicted SOLELY on ‘Adverse Inferences’?

Answer 3

NO

Question 4

Who can decide under the CJPOA 1994 whether an ‘Adverse Inference’ from silence can be drawn?
(1) Magistrates’ Court
(2) Crown Court

Answer 4

(1) Magistrates
(2) Jury (NOT Judge)

Question 5

Under s34 CJPOA, what is the 2 part test from when an ‘adverse inference’ can be drawn from silence?

Answer 5

(1) D FAILS to mention a FACT at Police Station, they later RELY ON at Trial
+
(2) ‘REASONABLE’ D NOT mention this FACT (DEAD CV factors)

Question 6

Under s34, there is a 2 part test from when an ‘adverse inference’ can be drawn from silence:
(1) D FAILS to mention a FACT at Police Station, they later RELY ON at Trial +
(2) ‘REASONABLE’ D NOT mention this FACT

When determining what is ‘Reasonable’ what will be considered? (Hint - DEAD CV)

Answer 6

1) D - DISCLOSURE - extent of police disclosure pre-interview
(2) E- EVIDENCE - strong/weak evidence of AR/MR of offence
(3) A - ARGENT FACTORS - e.g. Age, Mental capacity, Drunk, tired
(4) D - DEFENCE - strong/weak defence
(5) C - COMPLEX FACTS / LONG TIME AGO
(6) V - VULNERABLE client - e.g. juvenile

Question 7

Under s36 CJPOA, when will ‘Adverse Inferences’ be drawn from silence?

Answer 7

D FAILS account for presence of
(a) SUBSTANCE
(b) OBJECT
(c) MARK
Found on them

Question 8

Under s36 CJPOA, ‘Adverse Inferences’ will be drawn from silence when D FAILS account for presence (a) SUBSTANCE (b) OBJECT (c) MARK found on them.

What is REQUIRED to be given by the Police to the Suspect to allow an ‘adverse inference’ to be drawn?

Answer 8

Special Caution

Question 9

Under s37 CJPOA, when will ‘Adverse Inferences’ be drawn from silence?

Answer 9

D FAILS account for their PRESENCE AT SCENE

Question 10

Under s37 CJPOA, ‘Adverse Inferences’ will be drawn from silence when D FAILS account for their PRESENCE AT SCENE.

What is REQUIRED to be given by the Police to the Suspect to allow an ‘adverse inference’ to be drawn?

Answer 10

Special Caution

Question 11

What are the 2 main differences between (1) S34 CJPOA and (2) S36 and S37 CJPOA

Answer 11

(1) Special Caution given for S36 and S37
(2) NO test ‘Reasonableness’ S36 and S37

Question 12

If an ‘Adverse Inference’ can be successfully drawn under S34, 36 or 37 CJPOA, what is the FINAL WAY it could be excluded as evidence?

Answer 12

S78 PACE (‘Fairness’)