Inferences from Silence

Question 1

What is needed when a lie told by the accused is relied on

Answer 1

• Lucas direction

Question 2

What is lucas direction

Answer 2

• Direction should be tailored to the circumstances of the case, but it will normally suffice to make two points
• First that the lie must be admitted or proved beyond reasonable doubt, and
• secondly that the mere fact that the accused lied is not in itself evidence of guilt since defendants may lie for innocent reasons, so only if the jury are sure that the accused did not lie for an innocent reason can a lie support the prosecution case

Question 3

When is lucas direction not needed

Answer 3

• a Lucas direction need not be given where it is otiose, i.e. where the rejection of the explanation given by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic
• Nor, it seems, does a judge need to give a Lucas direction where the accused has offered an explanation for lies and the judge has dealt with that explanation fairly in the summing-up

Question 4

4 scenarios where D faces adverse inference in relation to silence

Answer 4

• Interview - s.34
• Trial s.35
• In relation to objects, substances and marks under s36
• About their presence at a place on arrest under s37

Question 5

Adverse inference under s.34

Answer 5

• An adverse inference under s.34 may be drawn against a defendant who, on being questioned under caution by a police officer, prior to being charged with the offence, failed to mention any fact which he subsequently relies on in his defence. The inference can also be drawn if the defendant is silent on being charged with the offence.
• The fact can be put forward either by giving evidence or through cross examination
• The fact must have been one which in the circumstances existing at the time, the accused could reasonably have been expected to mention
• the section does not apply where the defendant has not been given access to legal advice prior to being questioned or charged
• The section is primarily aimed at defendants who put forward a positive defence after a no comment interview or run what is commonly referred to as an ‘ambush’ defence
• An adverse inference is only appropriate where the jury conclude that the silence can only sensibly be attributed to a defendant having no answer, or none that would stand up to questioning

Question 6

Adverse inference under s.36/s.37

Answer 6

• s36 covers any object substance or mark which is found either on the suspect’s person OR in or on his clothing OR otherwise in his possession OR in any place in which he is at the time of arrest.
• s37 covers the presence of the suspect at a place at or about the time the offence for which he is arrested is alleged to have been committed.
• Important points are that an inference can only been drawn if
• 1. The person is arrested
• 2. A police officer, who doesn’t have to be the arresting officer, reasonably believes that the object, substance or mark may be attributable to the person’s participation in the commission of an offence specified by that officer OR that the person’s presence at the relevant place may be attributable to the person’s participation in the crime for which he has been arrested.
• 3. The person is informed of that belief and a request is made for an explanation.
• 4. The person is given a special warning of the consequences of failing to comply with the request, i.e. that an adverse inference can be drawn.

Question 7

Adverse inferences under s.35

Answer 7

• relates to inferences drawn from an accused’s failure to testify.
• Before an inference can be drawn, the court must satisfy itself that the accused is aware of the consequences of failing to give evidence and that he is not obliged to do so.
• the section shall not apply where ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence’
• s35(5) also allows for the accused to be excused from answering a particular question on grounds of privilege, statutory entitlement or at the discretion of the court
• The judge must give a carefully tailored direction to the jury in relation to any adverse inference, and no conviction can be based solely on silence. Nor can the judge find that there’s a case to answer based solely on silence

Question 8

Discretion to deploy s.34

Answer 8

• where the accused discloses the nature of the defence but fails to mention a particular fact that is relied upon at trial there is a discretion wether to deploy s.34
• Court of Appeal said that it would have been ‘wiser to avoid’ a direction where D had said enough in interview to ‘set up the line of reasoning’ on which his defence was based, although some points of detail were missing

Question 9

S.38

Answer 9

• A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2), 35(3), 36(2) or 37(2).

Question 10

Facts relied upon - meaning of reliance for s.34

Answer 10

• Section 34 of the CJPO 1994 does not apply where there is no attempt to put forward at trial some previously undisclosed fact
• e.g., where the defence simply contend that the prosecution have failed to prove their case
• a fact or matter is relied on not only where the accused gives or adduces evidence of it but also where counsel, acting on instructions, puts a specific and positive case to prosecution witnesses, as opposed to asking questions intended to probe or test the prosecution case.
• If the judge is in doubt whether counsel is merely testing the prosecution case or putting a positive case, counsel should be asked, in the absence of the jury, to make the position clear. - However, the positive case ought to be apparent from the defence statement made in advance of trial.

Question 11

Identification of facts in direction

Answer 11

• If the prosecution are unable to establish that the accused has failed to mention a fact, the jury should be directed to draw no inference
• Where the judge directs the jury on the basis that s. 34 applies, it is important that the facts relied on should be identified in the course of the direction and should not be mixed with other, innocuous, facts from which no inference can be drawn
• Any proposed direction should be discussed with counsel before closing speeches

Question 12

Legal advice to remain silent

Answer 12

• Where the accused may have had a good defence but chose on legal advice to remain silent, no inference should be drawn, but where the jury are sure that the accused had no such defence and ‘merely hid behind the legal advice’, an inference may be drawn

Question 13

Waiver of privilege involved with stating legal advice for silence

Answer 13

• An accused who wishes to explain the reasons for silence following legal advice, may find it hard to do so without waiving privilege
• While no waiver is involved in a bare assertion that advice had been given to remain silent, little weight is likely to attach to such an assertion unless the reasons for it are before the court
• the giving of evidence at a voir dire as to the reasons for legal advice for silence would operate as a waiver of privilege at trial even if the evidence was not repeated before the jury
• Where waiver takes place, the accused may be questioned about disclosures to the solicitor even where it is accepted that legal advice was given solely on the basis of the case as disclosed by the investigator

Question 14

Direction as to permissible inference - proper inferences

Answer 14

• Where the fact is one which the accused could reasonably have been expected to mention it will be permissible to draw ‘such inferences from the failure as appear proper’
• Although the most common inference from failure to reveal facts which are subsequently relied on is that the facts have been invented after the interview, it may equally appear to the jury that the accused had the facts in mind at the time of interview, but was unwilling to give an account and expose it to scrutiny

Question 15

Direction where s.34 applicable

Answer 15

• In all cases where the CJPO 1994, s. 34, is to be relied upon, it is submitted that a clear judicial direction will be required as to the nature of the inference that may properly be drawn.
• Guidance as to the content of such a direction may be found in the Crown Court Compendium

Question 16

guidance in CC for judicial direction where s,34 is relied upon

Answer 16

• a reminder that the accused was cautioned that he or she did not have to say anything, and therefore had a right to say nothing, but was also warned that conclusions might be drawn from failure to mention facts later relied on
• the identification in consultation with the advocates of the facts which were not mentioned but are now relied on in defence together with;
• any reasons given for the failure to mention those facts; and
• the conclusions it is suggested might be drawn (usually that the fact has been made up after interview and is not true);
• explanation for the failure other than that the accused had no answer at the time or none that would stand up to scrutiny.
• an instruction only to draw an adverse conclusion if it is ‘fair and proper’ to do so, and in any case not to convict the accused wholly or mainly on the strength of it.
• an instruction to consider whether the prosecution case as it stood at the time of the interview clearly called for an answer, and if it did, to consider whether, taking account of any explanation given by the accused, there was no sensible
• trial judge was not obliged to follow the direction verbatim, although a failure to do so may carry the risk that an important matter may be omitted

Question 17

S.34 direction and Lucas direction

Answer 17

• A direction may also be called for in relation to something said by the accused which the prosecution claim both conceals a fact later relied on and constitutes a positive lie. In such a case the facts may require that both a s. 34 direction and a Lucas direction should be given
• However if necessary they can be combined or one can be not used
• It is ultimately a question for the judge to determine whether a dual direction or two separate directions best fits the facts and circumstances of the case

Question 18

S.36 - time of arrest

Answer 18

• Section 36 is concerned with the state of the suspect at the time of arrest
• It does not matter how much time elapses between the incident and the arrest, provided the inference remains relevant

Question 19

s.36/s.37 state or location of the accused at a time other than arrest

Answer 19

• Neither s. 36 nor s. 37 permits the drawing of inferences in respect of the state or location of the accused at times other than arrest,
• e.g., when seen by an eye-witness at the time of the crime

Question 20

S.37 location of the crime

Answer 20

• s. 37 applies only when the accused was found at the location of the crime ‘at or about the time of’ the commission of the alleged offence and not, for example, if a suspect gives the police the slip at the scene and is arrested elsewhere.

Question 21

Procedure in light of s.35

Answer 21

• It has long been the recommended practice, and is of great importance in light of s. 35, for counsel to record the decision of the accused not to give evidence, and for the accused to sign it and indicate that it was made voluntarily

Question 22

Accused with physical or mental limitations

Answer 22

• In the rare case where the physical or mental condition of the accused makes it inappropriate to draw adverse inferences, the jury should be specifically directed to this effect
• s. 35(1)(b) requires that the accused’s physical or mental condition is such that if the accused gives evidence it will have a ‘significantly adverse effect on him’.