Inferences from the defendant’s silence and other conduct Flashcards
An accused person in a criminal trial has a ‘right to silence’. These concepts are not specifically mentioned in the rights guaranteed by the ECHR, Article 6, but it has been held that they constitute ‘generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6’ (Murray v UK (1996) 22 EHRR 29; Saunders v UK (1996).
True or false?
True
The conduct of the accused when an accusation is made against her may form the basis of an inference that he accepts the accusation. True or false?
True
According to the Criminal Justice and Public Order Act 1994, s. 34, the Court must infer a negative inference against a defendant who has not mentioned a fact that they later relied on as part of their defence when the matter was being investigated. True or false?
False. The Court in determining whether there is a case to answer and the jury, in deciding whether the accused is guilty of the offence charged, “may draw such inferences from the failure as appear proper”.
Where silence may be attributable to a variety of factors it is for the jury to decide what inference to draw. True or false?
True
In Murray, Court considered that even the lawful exercise of powers by police officers to delay access to legal advice could, where the accused was at risk of adverse inferences under the statutory scheme, be sufficient to deprive the accused of a fair procedure under Article 6. Why?
The accused was faced with a ‘fundamental dilemma’ at the outset of the investigation, in that her silence might lead to adverse inferences being drawn against her, while breaking her silence might prejudice her defence.
What answer does the The Youth Justice and Criminal Evidence Act 1999 establish to answer the dilemma in Murray v UK - in which an accused may risk negative inferences whilst waiting for her legal advice?
By postponing the prospect that inferences will be drawn until the accused has had the opportunity of consulting with a legal adviser
Can an inference under s34 of the Criminal Justice and Public Order Act 1994 alone substantiate a conviction according to (Abdullah [1999] 3 Arch News 3)?
No.
According to Murray v UK: “it would be incompatible with the accused’s rights to base a conviction ‘solely or _____ on the accused’s silence or on a refusal to answer questions or to give evidence himself”
What is _________
“Mainly”
A negative inference under Section 34 of the CJPO 1994 XXXXX apply where the accused makes no attempt to put forward at trial some previously undisclosed fact (e.g., where he simply contends that the prosecution has failed to prove its case).
Is XXXX “does”, or “does not”?_
Does not.
Where the accused at the relevant time gives a prepared statement in which certain facts are set forth, it cannot subsequently be said that he has failed to mention those facts, even if she gives a “no comment” interview. True or false?
True
If the prosecution fail to establish that the accused has failed to mention a fact in his defence, (after having given a no comment interview) how should the jury should be directed as to Section 34 of the CJPO 1994 ?
If the prosecution fail to establish that the accused has failed to mention a fact, the jury should be directed to draw no inference
Inferences about silence before a suspect is charged under the CJPO 1994, s. 34(1)(a), may not be drawn. However, what is the exception?
Inferences may be drawn if there was no mention of a fact later relied upon when a defendant was being questioned under caution by a constable.
What is the standard worded caution as set out in PACE Code C Paragraph 10.5?
“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
Adverse inferences may be drawn from a fact subsequently relied on in defence only where the fact is one which, in the circumstances existing at the time, the accused could reasonably have been expected to mention (s. 34(1)). If the accused gives evidence, should his reason for failing to disclose should explored?
Yes, the reason for an accused not giving evidence when questioned will determine whether a negative inference may be drawn under s34
In Condron it was held that the giving of legal advice to remain silent did not of itself preclude the drawing of inferences: all depends on the view the jury takes of the reason advanced by the accused for remaining silent if they knew a fact which would have assisted them. True or false?
True