Silence

Question 1

What statute allows inferences to be drawn from the accused’s silence out of court?

Answer 1

CRIMINAL JUSTICE and PUBLIC ORDER ACT 1994 S34

Question 2

What requirements are there for S34 CJPOA?

Answer 2

• The section requires that the defendant must have failed to mention some fact that he relies upon in his defence - Moshaid (1998)
• Section 34 does not apply to silence at an interview that takes place in breach of the codes.
• Facts can be relied on even if the defendant himself does not put it forward at trial - Bowers and Others 1998

Question 3

How should the judge direct the jury on silence?

Question 4

When can inferences be drawn on the failure to account objects, substances or marks?

Answer 4

Section 36 CJPOA:

This section makes it possible for a court to draw inferences from a defendant’s silence when challenged about the presence, at the time of arrest, of objects, substances and marks.

Section 37 applies to a defendant not giving an account as to why he was at a certain place.

Question 5

Can an inference be drawn when refusing to give body samples and DNA?

Answer 5

For Intimate Body Samples, the defendant must consent to give. If however he refuses, an adverse inference can be drawn.

This is defined in Section 62(10) PACE

Question 6

What statute allows inferences to be drawn from the accused’s silence in court?

Answer 6

Section 35(3) CJPOA 1994:

“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”

Question 7

What direction must be given to the court (when drawing inference from in-court silence), as defined in Cowan 1996?

Answer 7

• Burden of Proof remains on Prosecution
• Defendant has right to remain silent and can sit back.
• Jury must not assume guilt because defendant omits to testify.
• Jury must first decide that defendant has a case to meet before drawing inference.
• If jurors are satisfied that defendant is not testifying as he has no answer to the charge, they may draw inference in additional support of the prosecution case