Inferences from Silence under s34-s38 Flashcards
Give an overview of a suspect’s right to remain silent
S has a right to remain silent, but if the case goes to trial, the court may be allowed to draw ‘adverse inferences’ from this silence
Adverse inference means the court is likely to draw a negative conclusion from S’ silence when interviewed at PS – silence held against them effectively
- Usual inference is one of recent fabrication or that they didn’t propose the defence at PS because they didn’t think it would stand up to scrutiny
Silence or the adverse inference drawn from it cannot prove guilt on its own
No adverse inference can be drawn from silence if the police prevented S from getting legal advice pre-interview
What adverse inference can be drawn under s34?
Allows court to draw an adverse inference from D’s silence, if, when D was questioned at PS or charged, they failed to mention any fact later relied on in their defence
Can also draw this inference if they answer everything but fail to mention these salient facts which they rely on later
What conditions have to be satisfied before an adverse inference can be drawn under s34?
(a) the interview had to be an interview under caution;
(b) the defendant had to fail to mention any fact later relied on in his defence at trial;
(c) the failure to mention this fact had to occur before the defendant was charged;
(d) the questioning of the defendant at the interview in which the defendant failed to mention the fact had to be directed to trying to discover whether or by whom the alleged offence had been committed; and
(e) the fact which the defendant failed to mention had to be a fact which, in the circumstances existing at the time, the defendant could reasonably have been expected to mention when questioned
Condron v UK said the adverse inference can only be drawn if the court was satisfied that the real reason for D’s silence was that they had no answer to the questions being put to them or no answer that would stand up to scrutiny
What can be used to avoid an adverse inference under s34 where D is silent, but has a defence?
A prepared written statement, which is handed to the police and contains all the facts which D later relies on in their defence, will prevent an adverse inference from being drawn
If D has not yet had opportunity to get legal advice when interviewed, and remains silent, this is an absolute right and won’t cause adverse inferences to be drawn
- Only applies if police refuse D access to legal advice
Adverse inference still drawn if D relies on legal advice to stay silent, unless D genuinely and reasonably relied on the legal advice to remain silent
When might a solicitor advise D to remain silent?
There is an absence of meaningful disclosure from IO, which means it is difficult to properly advise the client
The facts are complex, or the events happened a long time ago
The suspect is ill, mentally disordered, excessively tired or intoxicated
D can only avoid inferences if they genuinely and reasonably relied on their advice to remain silent
What are the consequences of D disclosing their reason for remaining silent at trial, in relation to privilege?
If D gives the reasons for the solicitor’s advice to remain silent, this will waive privilege
Merely stating they were silent, following solicitor’s advice, will not waive privilege at trial
What adverse inference can be drawn under s36?
Allows court to draw an adverse inference where D failed to account for the presence of an object, substance or mark when interviewed
- Object etc could be on D’s person or in their vicinity at time of arrest
- If S has bloody knuckles and was accused of assault, if they don’t account for this when questioned, an adverse inference may be drawn
- If a bloody knife was found in a cupboard when D arrested at home might be triggered
This will operate irrespective of any defence put forward, unlike s34 which requires a defence to put forward later
D must be given a ‘special caution’ before any adverse inference can be drawn under s36. What does this involve?
D is told:
(a) what the offence under investigation is;
(b) what fact the suspect is being asked to account for;
(c) that the officer believes this fact may be due to the suspect taking part in the commission of the offence in question;
(d) that a court may draw an adverse inference from failure to comply with the request; and
(e) that a record is being made of the interview and that it may be given in evidence if the suspect is brought to trial (PACE 1984, Code C, para 10.11)
What adverse inference can be drawn under s37?
Allows the court to draw adverse inference if D fails to account for their presence at a particular place at or about the time the offence was committed, when questioned at PS
- If D is arrested a day after the offence, this would not be an applicable adverse inference to draw
- If D arrested at a location which has nothing to do with the offence, s37 wouldn’t apply
Operates irrespective of whether a defence is put forward or not
D must be given the special caution for s36 here too
What adverse inference can be drawn under s35?
1) D is not obligated to give evidence on their own behalf at trial or raise any facts in their own defence
2) D can remain silent at trial and simply argue that CPS has failed to prove guilt beyond a reasonable doubt - No adverse inferences under s34 can be drawn
3) Failing to give evidence at trial can result in an adverse inference being drawn under s35
- If prosecution has raised issues which call for an explanation + D fails to give evidence, court is entitled to infer that D has no explanation or one that wouldn’t stand up to cross-examination
What must the court consider when considering the application of s35?
D cannot be convicted on this adverse inference alone
The court has to consider the following when considering the application of s35
- (a) the burden of proof remains on the prosecution throughout;
- (b) D is entitled to remain silent;
- (c) before drawing an adverse inference from the D’s silence, the court had to be satisfied that there was a case to answer on the prosecution evidence;
- (d) an adverse inference from the D’s failure to give evidence cannot on its own prove guilt; and
- (e) no adverse inference could be drawn unless the only sensible explanation for D’s silence was that he had no answer to the case against him, or none that could have stood up to cross-examination
What is a limited exception to the application of s35?
Limited exception where no adverse inference is drawn if ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence’
- Applied strictly (where giving evidence may trigger an epileptic seizure or florid state for a schizophrenic)
