T17 - Inferences from D silence and other conduct Flashcards
Does a D have a right to remain silent when questioned by the police
Yes
What is s.34 of the Criminal Justice and Public Order Act 1994, do?
This statute essentially, allows FOR AN ADVERSE INFERENCE TO BE DRAWN, from silence when questioned.
-This is in the caution warning police say.. (you do not have to say anything..)
What can the jury or magistrates infer if a defendant fails to mention something in police interview that they later raise at trial?
Rmbr that the jury or mc cant convict on the basis of inference alone, its smtg they account when determining guilt or innoccence
ex: jury may decide that the reason why he did not tell the police about his defence is because he reecently inveted it to fit the evidence adduced by the prosecution
( THE WHOLE BASIS OF INFERENCE IS THAT THE D COULD HAVE TELL POLICE EARLIER BUT CHOOSE TO TELL THE POLICE NOW) - is this reasonable to do so?
What must a defendant do if they remained silent during police questioning?
They must provide a good explanation for their silence, or risk the court drawing negative inferences from it.
What are the conditions for an adverse inference from silence to apply under s.34, as summarised in R v Argent [1997]?
- There must be proceedings for an offence.
- The silence must occur before charge (subject to s.34(1)(b)). (RMBR SILENCE MUST OCCUR BEFORE THE CHARGE)
- It must happen during questioning under caution by an authorised person. (IMP- happen under caution)
- The questioning must aim to discover whether or by whom the offence was committed.
- The silence must relate to a fact later relied on in defence. (IMP)
- The defendant could reasonably have been expected to mention that fact at the time.
What should counsel do when a D has remained silent in interview
They should raise with the judge whether an adverse inference should be drawn before closing speeches.
If accepted, it allows both counsel to address the issue in their speeches and ensures the judge gives a proper jury direction in summing up.
How does legal advice to remain silent affect the drawing of an adverse inference, as explained in R v. Beckles [2005]?
If the defendant claims they remained silent on their solicitor’s advice, the jury MUST still decide under s.34 whether the facts later relied on in court were ones the defendant could reasonably have been expected to mention at the time of the interview
IF not, no inference is drawn. If the jury believes the defendant genuinely relied on legal advice, that doesn’t automatically prevent an inference—it must still have been reasonable to rely on that advice, and the advice must genuinely explain the silence.
The judge must direct the jury to CONSIDER ALL CIRCUMSTANCES to assess the REASONABLESS OF THE D actions.
When does s36 CJPOA apply?
When a suspect fails or refuses to account or an object, substance, or mark found on them, their clothing/footwear, possessions, or nearby location at the time of arrest.
What four conditions must be satisfied before an inference can be drawn under s36 CJPOA?
a) An object, substance, or mark is found:
- on the suspect’s person,
- in or on their clothing or footwear,
- in their possession, or
- in the place where they were arrested;
(b) A constable REASONABLY believes that its presence may be due to the suspect’s involvement in an offence;
(c) The constable informs the suspect of that belief and asks them to account for the item;
(d) The suspect fails or refuses to do so.
What can the court do if all conditions in s36(1)(a)-(d) are satisfied?
The court may draw such inferences as appear proper, potentially implying guilt or involvement in the offence.
Does the object or substance have to be clearly linked to a crime for s36 to apply?
No, it is sufficient that a constable reasonably believes its presence may be attributable to the commission of an offence.
What is the significance of a defendant’s failure to explain an object, substance, or mark under s36 CJPOA?
The jury or magistrates may infer that the defendant had no innocent explanation, which supports the prosecution’s case.
However, an inference alone cannot be the sole basis for a conviction.
What does s37 CJPOA cover?
It allows the court to draw an adverse inference when a defendant fails or refuses to account for their presence at a particular place near the time of the alleged offence.
ALLOWS COURT TO DRAW AN INFERENCE WHEN D FAILS OR REFUSE TO ACCOCUNT FOR THIER PRESENCE AT A PARTICULAR PLACE NEAR TIME OF ALLEGED OFFENCE
What are the conditions for an inference under s37 CJPOA to be drawn?
- The defendant is arrested and was found at or near the scene/time of the offence.
- A constable reasonably believes their presence may be connected to the offence.
- The constable informs the person of this belief and requests an explanation.
- The person fails or refuses to account for their presence.
What inference can be drawn under s37 CJPOA when a defendant fails to explain their presence at a location?
The court may infer that the defendant had no innocent explanation for being there.
This inference can be used to support the prosecution’s case, but cannot alone justify a conviction—it must be considered alongside other evidence.
What does s35(2) CJPOA 1994 say about a defendant’s failure to give evidence at trial?
If a defendant chooses not to give evidence, the jury may draw an adverse inference—i.e., they may take it as suggesting guilt. This is why it’s crucial for legal advisers to explain the potential consequences of remaining silent at trial.
What conditions MUST be satisfied to est inference from D failure to give evidence in trial ( s.35(2)
- Guilt is in issue.
- The defendant is mentally and physically fit to give evidence.
- The judge confirms (in the jury’s presence) that the defendant knows:
a) The defence stage has been reached;
b) They can choose to give evidence;
c) If they don’t, the jury may draw an adverse inference.
- The defendant fails to give evidence or refuses to answer questions without good cause.
What must you do if your client decides not to give evidence at trial?
- Discuss the issue in conference, including the risk of adverse inference.
- Emphasise that the defendant has an absolute right not to give evidence.
- The key concern is the consequence, not the right itself.
If the client chooses not to testify, you must:
a) Make a written note of your advice;
b) Ask the client to sign the note.
What are the key legal rules under s35(2) CJPOA 1994 regarding failure to give evidence?
S.35(2) is MANDATORY
-> Adverse inferences cannot be drawn unless the trial judge has asked the required questions of the defendant or their advocate. ( IMPORTANT)
This applies even if the defendant absents himself deliberately from the trial.
A conviction cannot be based solely on the defendant’s failure to give evidence.
What is the significance of evidence that the defendant has lied in a criminal trial?
The prosecution may use evidence that the defendant lied—either in police interviews or to others—to support their case, suggesting that the lies indicate guilt and a lack of innocent explanation
However, lying does not automatically prove guilt, and case law has developed guidelines to address situations where lies are alleged.
What is a Lucas Direction
ITS when the prosecution relies on evidence that the defendant lied, the judge must give a Lucas direction.
This warns the jury that people lie for many reasons and that lying alone doesn’t prove guilt. However, if the jury is sure the defendant lied and there’s no innocent explanation, they can use this as evidence of guilt. The direction isn’t needed if there’s just a conflict between the prosecution and defence. (TAKE NOTE DONT NEED IF THERE IS CONFLICT BETWEEN THE P AND D)
