Inferences (W11) Flashcards
F1.25 - Lies and Lucas directions
- Lies told by the accused, on their own, do not make a positive case of any crime.
- However, they may indicate a consciousness of guilt and in appropriate circumstances may be relied upon by the prosecution as evidence supportive of guilt.
- Whenever a lie told by the accused is relied on by the Crown or may be used by the jury to support evidence of guilt, as opposed merely to reflecting on the accused’s credibility, a Lucas direction should be given to the jury:
(a) The lie must be deliberate and must relate to a material issue
(b) They must be satisfied that there was no innocent motive for the lie, reminding them that people sometimes lie in an attempt to bolster a just cause or out of shame or a wish to conceal bad behaviour
(c) The lie must be established by evidence other than that of the witness who is to be corroborated. - A direction need not be given where it is not necessary e.g. where the rejection of an explanation by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic.
- Nor does the judge need to give a Lucas direction where the accused has offered an explanation for lies and the judge has dealt with that explanation in the summing up.
F1.26 - The Four Burge situations
In Burge, CoA held that a Lucas direction is usually required in four situations, which may overlap:
(1) Where the defence relies on an alibi
(2) Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told or allegedly told by the defendant.
(3) Where the prosecution seek to show that something said, either in or out of court, in relation to a separate and distinct issue, was a lie, and to rely on that lie as evidence of guilt.
(4) Where although the prosecution have not adopted this approach, but the judge reasonably envisages that the jury may do so.
F20.1 - The right to silence
- An accused person in a criminal trial has a right to silence.
- The accused is not a compellable witness at trial and is under no general duty to assist the police with their inquiries.
F20.2 - Inferences
- At common law, no inferences of guilt were generally permitted to be drawn from the exercise of a right to silence.
- This has been substantially changed by the CJPO 1994 ss.34 to 38, which specify circumstances in which adverse inferences may be drawn from the exercise of the right.
- Where the statutory scheme does not apply, the common law rule still applies.
- Where the statutory scheme comes into play, the court is under an obligation to ensure that the jury are properly directed regarding the proper inferences that can be drawn.
F20.3 - Failure to reveal facts afterwards relied upon in court
s.34 CJPO - Drawing an adverse inference from silence occurs where the accused withholds when questioned matters that are subsequently introduced in support of a defence at trial.
F20.4 - s.34 CJPO 1994
(1) Where, in any proceedings against a person for an offence, evidence is given that the accused–
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact; or
(c) at any time after being charged with the offence, on being questioned under s.22 Counter Terrorism Act 2008 (post charge questioning) failed to mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) applies.
(2) Where this subsection applies–
(b) a judge, in deciding whether to grant an application made by the accused under para 2 sch.3 CDA 1998;
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.
F20.4 - further provisions of S.34 CJPO 1994
- Where the accused was at an authorised place of detention at the time of the failure, it does not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed.
- This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables.
F20.5 - When s.34 applies
- The provision only applies where a particular fact is advanced by the defence which is suspicious by reason of not being put forward at an early opportunity. It does not apply simply because the accused has refused to answer questions.
- It applies also where the accused discloses the nature of the defence but fails to mention a particular fact that is relied upon at trial. In such a case there is a discretion whether to deploy s.34.
- s.34 is primarily aimed at ‘the positive defence following a “no comment” interview and/or the “ambush” defence.’
F20.6 - Adverse inference consistent with the right to a fair trial
- ECtHR has confirmed that the mere fact a trial judge leaves a jury with the option of drawing adverse inferences from silence in interview is not incompatible with the requirements of a fair trial.
- Whether the drawing of adverse inferences infringes Art 6 is a matter to be determined in all the circumstances of the case, and of particular importance are the judge’s directions to the jury.
- Failure to give an appropriate direction will not necessarily be a breach of Art 6 nor render a conviction unsafe, e.g. if the evidence against the accused is strong, the failure to mention facts was not consequent upon legal advice, etc
F20.7 - Access to legal advice
- Even the lawful exercise of a power to delay access to legal advice could, where the accused was at risk of adverse inferences under s.34, be sufficient to deprive the accused of Art 6 rights.
- The prospect of adverse inferences should therefore be postponed until the accused has had the opportunity of consulting with a legal adviser.
- An ‘authorised place of detention’ is defined to include police stations and any other place prescribed by order.
- The caution to be given to a person to whom a restriction on drawing adverse inferences applies is specified by PACE Code C.
F20.8 - No conviction wholly or mainly on silence
CJPO 1994, s.38
- (3) 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 s.34, s.35, s.36 or s.37
- (4) A judge shall not refuse to grant such an application as is mentioned in s.34, s.36 and s.37 solely on an inference drawn from a failure as is mentioned in these provisions.
F20.10 - ‘Fact relied on’ (s.34); meaning of reliance
- s.34 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)
- To give a s.34 direction in a case where the accused has put forward no more than a bare denial would be tantamount to directing that guilt can be inferred directly from silence.
- s.34 therefore would not bite where the defendant refused to give or call evidence at trial.
- s.34 applies not only where the accused gives or adduces evidence of a fact but also where counsel, acting on instructions, puts a specific and positive case to a prosecution witness rather than merely questioning the witness’ or prosecution’s version of events. If the judge is unclear whether counsel is doing this, counsel should be asked in the absence of the jury to make their position clear.
F20.11 - Identification of facts in the direction
- 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 that s.34 applies, it is important that the facts relied on should be identified in the direction.
- Any proposed direction should be discussed with counsel before closing speeches.
F20.13 - Prepared statements
- Where the accused at the relevant time gives a prepared statement in which certain facts are set forth, it cannot subsequently be said that there has been a failure to mention those facts.
- A prepared statement may however be dangerous for an accused who then discovers something significant has been omitted.
- Inconsistencies between the prepared statement and the defence at trial do not necessarily amount to reliance on unmentioned facts, so the judge must be particularly careful to pinpoint any fact that might properly be the subject of a s.34 direction.
- Alternatively, the jury might be directed to regard differences between the prepared statement and the accused’s evidence as a previous lie rather than foundation for a direction under s.34.
F20.14 - Caution or charge
- Inferences before a suspect is charged under the CJPO 1994 s.34 may not be drawn except ‘on being questioned under caution by a constable.’ Constable includes others charged with investigating offences.
- If no questions under caution are put e.g. the accused refuses to leave the cell for questioning, s.34 cannot apply
- It is not necessary that specific questions are put in interview: a defendant ‘questioned under caution’ is by necessary implication invited to give an account of the matter which has given rise to the interview.
- A fact also does not have to be stated in response to a question to have been ‘mentioned’, e.g. D handing over a prepared statement in which the relevant facts were mentioned and this was sufficient to prevent an inference, although he subsequently declined to answer questions.
F20.17 - Facts which should have been mentioned
- Adverse inferences may only be drawn under s.34 if the fact is one which, in the circumstances at the time, the accused could reasonably have been expected to mention.
- If the accused gives evidence, the reason for failure to mention the fact should be explored and must be considered in deciding what inferences, if any, should be drawn. If the jury accept the explanation as true, no adverse inferences should be drawn.
- Ultimately an adverse inference is only appropriate where the jury conclude that the silence can only sensibly be attributed to the defendant’s having no answer, or none that would stand up to questioning.
- If D genuinely believed that he had mentioned a fact at interview but hadn’t, then his state of mind at interview was not that of a guilty person withholding information and so any direction given should reflect this.
- If D’s only chance to mention a fact is when a witness statement is read to him in interview and he had not been told that he should correct any statement to which he disagreed, it would be unsafe to draw adverse inferences.
- A range of factors may be relevant to what might be expected, including the accused’s age, experience, mental capacity, health, sobriety, tiredness and personality.
- The failure of the interviewer to disclose relevant information when asked to do so by the accused or a legal adviser is another factor bearing upon whether an adverse inference is appropriate.
- Where D was invited to respond to a narrative rather than being asked specific questions, the issue whether D might be expected to go further than simply explaining his defence in broad terms was a matter to which the jury’s attention should have been specifically directed.
F20.18 and 19 - Legal advice to remain silent
- Delicate because of privilege
- Genuine reliance by a defendant on his solicitor’s advice to remain silent is not in itself enough to preclude adverse inferences.
- Legal entitlement is one thing. An accused’s reason for exercising it is another. His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is.
- The true question is whether D remained silent ‘not because of that advice but because he had no or no satisfactory explanation to give.’
- Importance of considering the age and maturity of the accused and the complexity of the facts relied upon.
- Where the accused may have had a good defence but chose to rely 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.
F20.20 - Waiver of privilege and statements
- The 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 and if the accused volunteers this information, they waiver all legal advice privilege.
- The position is different where the accused merely responds to an allegation of recent fabrication by stating that the defence was communicated to the solicitor: no waiver is involved there.
F20.23 - Direction as to permissible inferences
- Where the fact is one which the accused could reasonably have been expected to mention, it will be permissible to draw ‘such evidence from the failure as appear proper) in various contexts including the determination of guilt, whether there is a case to answer, bearing in mind that an inference on its own is not enough to sustain either determination.
- The most common inference is that the facts were invented after interview, but the jury can equally infer that the accused had the facts in mind at interview but was unwilling to expose their account to scrutiny.
- Another permissible inference under s.34 is that the accused was faced with a choice between silence and self incrimination, and chose silence.
- Where the inference the prosecution suggest should be drawn is not that of recent fabrication, the judge should include this in their summing up.
- In cases where the accused attributes failure to mention facts to legal advice, but without explaining the reasons behind the advice, the jury should be particularly careful to avoid directing the jury in such a way as to indicate the silence is a guilty one.
- However, the judge is allowed to comment on the evidence e.g. question why, for example, when the defence advanced at trial is an 100% defence, the defendant would not have advanced it in interview.
F20.25 - Key elements of a s.34 direction
(1) 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 their failure to mention facts later relied on;
(2) (a) the identification in consultation with the advocates of the facts which were not mentioned but are now relied on in defence together with:
(b) any reasons given for the failure to mention those facts; and
(c) the conclusions it is suggested might be drawn (usually that the fact has been made up after interview and is not true)
(3) 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 explanation for the failure other than that the accused had no answer at the time or none would stand up to scrutiny.
(4) 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.
F20.25 - Magistrates s.34 test
(1) Has the defendant relied in his defence on a fact which he could reasonably have been expected to mention in his interview, but did not? If so, what is it?
(2) What is his explanation for not having mentioned it?
(3) If that explanation is not a reasonable one, is the proper inference to be drawn that he is guilty?
F20.25 - When the judge should raise s.34
- If the judge thinks that s.34 might come into play, the matter should be raised in time for it to be the subject of evidence not speculation. If however there has been no discussion with counsel of the intended direction in circumstances where it is clear to the defence that the prosecution are relying on the accused’s failure to mention facts, this is unlikely to render the trial unfair.
- A direction may be called for where there is more than one accused. If A has failed to mention a relevant fact so as to attract a s.34 direction, it is desirable in the case of co-accused B whose case stands or falls with A’s to give a direction not to draw an inference against B.
F20.26 - s.34 relationship with Lucas direction on lies
- In relation to something said by the accused which the prosecution claim both conceals a fact later relied on and constitutes a positive lie, the facts may require that both a s.34 direction and a Lucas direction should be given.
- However, it is usually undesirable to give both; the judge should select and adapt the direction if necessary to make it appropriate to the case.
- Where separate directions are given, it is important that they are consistent.
- The failure of the judge to direct a jury that they should specifically reject D’s reason for silence before drawing an inference was not fatal to the fairness of the trial where the jury must, in rejecting D’s defence, have also rejected his reason for remaining silent.
F20.34 - CJPO 1994 s.36 - object, substance or mark
(1) Where–
(a) a person is arrested by a constable, and there is–
(i) on his person, or
(ii) in or on his clothing or footwear; or
(iii) otherwise in his possession; or
(iv) in any place in which he is at the time of his arrest,
any object, substance or mark, or there is any mark on any such object; and
(b) that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to participation of the person arrested in the commission of an offence specified by the constable; and
(c) the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and
(d) the person fails or refuses to do so,
then if, in any proceedings against the person for the offence so specified, evidence of those matters is given, subsection (2) applies.
(2) Where this subsection applies–
(b) a judge, in deciding whether to grant an application made by the accused under para 2 sch 3 CDA 1998;
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure or refusal as appear proper.
(4) Subsections (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request…what the effect of this section would be if he failed or refused to comply with the request.
(4A) Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) do not apply if he had not been allowed an opportunity to consult with a solicitor prior to the request being made.
- Applies to officers of customs and excise in the same way it does to constables.
F20.34 - CJPO 1994 s.37: presence
(1) Where–
(a) a person arrested by a constable was found by him at a place at or about the time the offence for which he was arrested is alleged to have been committed; and
(b) that or another constable investigating the offence reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence; and
(c) the constable informs the person that he so believes, and requests him to account for that presence; and
(d) the person fails or refuses to do so,
then if, in any proceedings against the person for the offence, evidence of those matters is given, subsection (2) applies.
(2) Where this subsection applies–
(b) a judge, in deciding whether to grant an application made by the accused under para 2 sch 3 CDA 1998;
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure or refusal as appear proper.
(3) Subsections (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request…what the effect of this section would be if he failed or refused to comply with the request.
(3A) Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) do not apply if he had not been allowed an opportunity to consult with a solicitor prior to the request being made.
- applies to customs and excise
F20.36 - Basis for inference
- Neither s.36 or s.37 permit an inference to be drawn unless four conditions are satisfied:
(a) the accused is arrested;
(b) a constable reasonably believes that the object, substance or mark, or the presence of the accused at the relevant place, may be attributable to the accused’s participation in the crime (in s.36 ‘specified by the constable’ and in s.37 the offence for which he was arrested)
(c) the constable informs the accused of his belief and requests an explanation of the matter in question;
(d) the constable tells the suspect in ordinary language the effect of a failure or refusal to comply with the request. - On their face, these conditions may be satisfied where an arrested person is confronted before being taken to the police station or place of detention, but a request for info under these sections would appear to be a form of questioning, therefore should take place in interview at a police station or authorised place of detention.
F20.37 - Inferences that can be drawn under s.36 or s.37
- As with s.34, only ‘proper’ inferences can be drawn.
- Jury must be satisfied that the accused has failed to account for the matter
- Any explanation advanced by the accused should be rejected as implausible before an inference can be made.
- The strength of the inference increases with the suspiciousness of the circumstances.
F20.38 - timing related to s.36 and 37
- s.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.
- e.g. scarring could be the subject of an inference under s.36
- neither s.36 or 37 permits the drawing of inferences in respect of the state or location of the accused at any time other than the arrest e.g. when seen by an eyewitness at the time of the crime
F20.39 - Use of ss.36 and 37 in relation to guilt
- An inference drawn under these sections may form part of the case to answer or contribute to a guilty verdict, though neither outcome may be based ‘solely’ on such an inference.
- However this is unclear because sometimes the inference alone is enough and in any case can never exist on its own, e.g. when someone is found in a car with two bombs on the backseat and failed to account for them
F20.42 - CJPO 1994 s.35: failure to testify
(1) At the trial of any person for an offence, subsections (2) and (3) apply unless-
(a) an accused’s guilt is not in issue; or
(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;
but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.
(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment with a jury, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good causes refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.
(4) This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.
(5) For the purposes of this section a person who, having been sworn, refuses to answer any question shall be taken to do so without good cause unless–
(a) he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or
(b) the court in the exercise of its general discretion excuses him from answering it.
(7) This section applies–
(a) in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section;
(b) in relation to proceedings in a magistrates’ court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section.
F20.42 - Function of s.35
- The nature of the inference available will depend on the way in which the evidence has developed and the strength of the prosecution case; the stronger the case, the more powerful the incentive to provide an answer.
- A careful direction will be required in all cases where the accused does not testify, in order to make the jury aware of the inferences which may properly be drawn. One of the purposes of the direction is to make the jury aware that the right to silence still exists in the sense that the accused is under no obligation to testify.
F20.43 - s.35 Procedure
- The court is obliged to satisfy itself that defendants who have not indicated that they intend to give evidence understand the consequences of declining to do so.
- The burden of explaining the option to testify and the consequences of failing to do so to the defendant rests in the case of a legally represented defendant with the legal representative.
F20.45 - ‘Proper’ inferences of guilt under s.35
- The ‘proper’ inferences come about as a result of the failure of the accused to give evidence or refusal without good cause to answer any question.
- The accused may be excused from answering a particular question on grounds of privilege or statutory entitlement, or in the discretion of the court. Subject to these exceptions, the accused must answer all proper questions or risk the drawing of inferences, and a judge may remind the accused of this duty, though not in an oppressive way.
- An observation that the accused has, by failing to give evidence, deprived the jury of contradiction or explanation of prosecution evidence can only fairly be made if the uncontradicted evidence concerns a matter about which the accused can confidently be expected to have personal knowledge.
- In some cases, evidence of the accused may be superfluous. In such cases s.35 directions are inappropriate and prejudicial.
F20.46 and 47 - Accused with physical or mental limitations
- There will be cases where the accused’s physical or mental condition make it ‘undesirable’ for the accused to give evidence, and in such cases no inference should be drawn.
- It would only be in a rare case that the judge would be called upon to arrive at a decision under s.35(1)(b): an accused who was unable to comprehend proceedings so as to make a proper defence would be unfit to plead, so the issue would not arise
- s.35(1)(b) gives a wide discretion to a trial judge. They may be influenced by the fact that vulnerable defendants can be protected from unfair or oppressive cross-examination.
- 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.
- There must be an evidential basis for a ruling that s.35(1)(b) applies. A voir dire may be required to determine the issue, although the judge is under no obligation to initiate the procedure if defence counsel does not seek to do so.
F20.48- Nature of inference under s.35
- The adverse inference which it may be proper to draw under s.35 is that the accused is ‘guilty of the offence as charged.’
- As s.35 does not come into play until after the close of the evidence of the prosecution, it presupposes that a prima facie case has already been established against the accused.
- ‘If there is no prima facie case shown by the prosecution there is no case to answer. Equally, if parts of the prosecution case had so little evidential value that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt. On the other hand, if aspects of the evidence clearly call for an explanation which the accused may be in a position to give, if an explanation exists, then a failure to give any explanation may allow the drawing of an inference that there is no explanation and that the accused is guilty.’
F20.49 - No conviction solely on inference from s.35
- The accused cannot be convicted solely on an inference drawn from a failure or refusal.
- The prosecution remain under an obligation to establish a prima facie case before any question of the accused testifying is raised.
- This means that the case should be fit to be left to the jury, but also that the judge should make it clear to the jury that they must be convinced of the existence of the prima facie case before drawing an adverse inference from silence.
F20.50 - Drawing an inference: general rule
- For the judge to advise a jury against drawing such an inference under s.35 would require either ‘some evidential basis for doing so or some exceptional factors in the case making that a fair course to take.’
- An inference cannot be drawn unless the jury decide that the silence ‘can only sensibly be attributed’ to the accused having no answer, or none that would stand up to cross-examination.
- e.g. if the accused has a condition that falls short of making it ‘undesirable’ for them to testify, it is open to the jury to conclude that the reason for not testifying relates to the condition rather than to the accused having no answer.
- It is not a valid argument that the accused fears that giving evidence will result in an application to adduce evidence of bad character. Even if the prosecutor is unwilling to clarify the position, it cannot be said that the accused is thereby put under unfair pressure not to testify.
F20.51 - No inference where the prosecution case is weak
- Inferences of guilt should not be drawn from failure to give evidence to contradict a prosecution case of ‘little evidential value.’
- However, once it has been decided that there is a case to answer, the failure of D to give evidence about relevant matters in his police interview made the drawing of an inference permissible.
F20.52 - Strong inference where facts clearly call for explanation or are within the accused’s knowledge
A stronger comment is justified where an inference could be drawn from uncontested or clearly established facts which point so strongly to guilt as to call for an explanation.
