Inferences - Overview

Question 1

What is the right to silence?

Answer 1

• A suspect has the right to remain silent, but the court may draw inferences from their silence.

Question 2

What is an adverse inference?

Answer 2

An adverse inference is a common-sense conclusion that is unfavourable to the suspect.

Question 3

Can a D be convicted solely on adverse inferences?

Answer 3

No

Question 4

What is the effect of Section 34?

Answer 4

• If a suspect fails to mention a fact during interview that they later rely on at trial, the court may infer:
  o The defence is true, but the suspect deliberately chose not to mention it.
  o The defence is false, and they are guilty.

Question 5

What must happen before an inference can be drawn under Section 34?

Answer 5

• The suspect must have been cautioned before the interview.

Question 6

What does the police caution say?

Answer 6

“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.”

Question 7

When is it ‘reasonable’ for a suspect to have mentioned a fact?

Answer 7

• The circumstances at the time should be widely interpreted and include:
  o Disclosure made to the suspect or their solicitor.
  o What the prosecution can prove the suspect knew at the time.
  o The suspect’s condition and circumstances (e.g. intoxication, mental health).
  o Any legal advice the suspect received.

Question 8

How does an adverse inference affect a defence?

Answer 8

• It undermines the credibility of the defence.
• The prosecution may argue that:
  o The trial explanation is fabricated because it was not mentioned earlier.
  o The suspect withheld their defence because they knew it was weak.
  o The suspect had no reasonable explanation at the time of questioning.

Question 9

When do Sections 36 and 37 apply?

Answer 9

• Section 36 – When a suspect fails to explain an object, mark, or substance found on them (e.g. bruises, a hammer in a bag).
• Section 37 – When a suspect fails to explain their presence at a crime scene (e.g. being on a burglary victim’s driveway at 4 AM).

Question 10

How do Sections 36 and 37 (mark / presence) differ from Section 34 (facts relied on)?

Answer 10

• Section 34 relates to a failure to mention facts later relied upon in court.
• Sections 36 and 37 allow inferences immediately if the suspect fails to account for something when questioned.

Question 11

What must the police do before drawing an inference under Sections 36 and 37?

Answer 11

• Give the suspect a special caution, stating:
  o The offence being investigated.
  o The fact they must account for.
  o The fact may indicate involvement in the offence.
  o The court may draw an inference if they refuse to explain.
  o A record is being made that may be used in evidence.

Question 12

What safeguard exists against wrongful conviction based on adverse inferences?

Answer 12

• Section 38 – A defendant cannot be convicted solely on the basis of an adverse inference.

Question 13

When can no adverse inference be drawn?

Answer 13

• If the suspect was not allowed legal advice.

Question 14

What happens if a case never goes to trial?

Answer 14

• Adverse inferences are irrelevant if:
  o The case does not proceed to trial.
  o The suspect pleads guilty.
• A solicitor must balance the likelihood of trial against the risk of an adverse inference.