Topic 13- Inferences Flashcards
Can lies told by the accused make a positive case for a crime?
No, not on their own
What do lies told by an accused indicate?
They may indicate a consciousness of guilty and can be relied upon by the prosecution as evidence
Does an accused have a right to silence?
Yes
What is a right to silence also known as?
Privilege against self-incrimination
Is an accused under a duty to assist the police?
No, as they are not a compellable witness at trial
Can inferences be drawn from the right to silence?
Yes
What statute helped inferences to be drawn from silence?
s34 to 38 CJPO 1994
Where an accused fails to mention any fact relied on in his defence or stays silent, can inferences be drawn from this?
Yes, the jury my draw such inferences from the failure or silence
What does Section 34 of the CJPO 1994 permit?
Inferences to be drawn from an accused’s failure to have reasonably expected to reveal specific facts
Can adverse inferences be drawn from silence in an interview?
No, this is incompatible with article 6 ECHR
If an accused stays silent during an interview, can adverse inferences be drawn from this?
No
If an accused has not yet consulted with a legal advisor, when can inferences be drawn from his silence?
Once he has obtained legal advice
Can an accused be convicted solely on the inference from silence?
No
If the accused makes no attempt to put forward a previously undisclosed fact, can inferences be drawn from this?
No
If the accused responds “no comment” to a single question in an interview, can an adverse inference be drawn from this?
No
Can inferences be drawn before a suspect is charged?
No, except on being questioned under caution
If an accused refuses to leave his cell, so cannot be questioned, can adverse inferences be drawn from this?
No, as the statutory language does not apply
Where a fact has been relied on in defence, which the accused could have reasonable mentioned, can adverse inferences be drawn?
Yes,
but any explanation from the accused as to why it was not mentioned must be considered when deciding what inferences to draw
What factors will the court look at in deciding what inferences to be drawn where an accused failed to mention a fact?
Age
Experience
Mental capacity
Sobriety
Health
Tiredness
Personality
If an accused has been given legal advice to remain silent, what inferences can be drawn?
Genuine reliance will not result in adverse inference
However, it will depend on the circumstances- for example, if they had no explanation, then adverse inferences can be drawn
If an accused has a good defence but chose on legal advice to remain silent, what inferences can be drawn?
No inference should be drawn
If an accused has remained silent after relying on legal advice, can they explain why?
Yes, but they would have to likely waive legal privilege
What is the key factor for a jury to draw inferences from a failure to mention a fact?
The accused must have REASONABLY been expected to mention the fact
Where s34 CJPO is to be relied upon, what must the judge do?
The judge must make a clear judicial direction to the jury as to the nature of the inference
What are the key elements of the direction for s34 CJPO (Crown Court only)
A reminder that the accused was cautioned, so they had a right to say nothing
Any possible reasons for the failure
The conclusions that can be drawn from the failure
Whether an answer was reasonably expected in the interview
An instruction only to draw an adverse inference if it is fair and proper
What is the three stage test in Magistrates Court for applying s34 CJPO?
Has the defendant relied in his defence on a fact he could reasonably have expected to mention, but did not?
What is his explanation for the failure?
If the explanation is not reasonable, is the proper inference to be drawn that he is guilty?
If the prosecution does not rely upon s34 CJPO to draw an inference, does the judge have to make a direction?
Yes, they ought not to leave it open to the jury to draw their own inferences
Where something has been said by the accused which the prosecution claims both conceals a fact later relied on and constitutes a positive lie, what should the judge do?
The judge may make a s34 CJPO direction and a Lucas direction
However, it is sometimes preferred to just use a single direction and modify it
What is s36 CJPO?
Where a person is arrested and on his person, clothing, possession, etc, there is an object, mark, or substance, and the person then fails or refuses to account for it, then the jury may draw inferences from it
What is s36 CJPO?
Where a person is arrested in a place or at a certain time, and the person then fails or refuses to account for it, then the jury may draw inferences from it
What are the four conditions to be satisfied for an inference to be drawn under s36 or s37 CJPO?
The accused is arrested
A constable reasonably believes the object, place, etc is attributable to the accused’s participation in a crime
The constable informs the accused of his belief and requests an explanation
The constable uses ordinary language of the effect for the failure to comply with the request
Where an accused fails to answer in a s36 or s37 circumstance, and the conditions are satisfied, what inferences can be drawn?
Only proper inferences can be drawn
The jury must be satisfied that the accused has failed to account for the relevant matter
What does s38 CJPO provide?
That an inference drawn under s36 or s37 may contribute to a verdict of guilty
However, guilty verdict usually cannot be based solely on an inference (unless it is very obvious)
Can the failure of an accused to testify be subject to a comment by the prosecution, under the CJPO 1994?
Yes, inferences from failure to testify are permissible
What does the nature of inferences from failure to testify depend on?
Depends on the way in which the evidence has developed and the strength of the prosecution case
= the stronger the case, the higher the inferences
If an accused says he does not want to give evidence, what must the judge tell him?
The judge must tell them about the consequences of declining to do so
If the accused fails to testify due to a mental or physical condition, what direction should the judge make?
The judge must be very careful in directing the jury about this
What is the nature of an inference under s35 CJPO?
The inference that may be drawn is that the accused is guilty as charged due to the fact they did not testify
Can an accused be convicted solely on failure to testify (s35 CJPO)?
No, the prosecution remain under an obligation to establish a prima facie case before any question of the accused testifying is raised
Where an accused has not testified, what circumstances must there be for the court to not make an adverse inference direction to the jury?
There must be some evidential basis or exceptional factors for not doing so
Where a prosecution’s case is weak, and an accused fails to testify, what inferences can be drawn?
Inferences cannot be drawn from a failure in cases where there is a weak evidential basis
Where an accused fails to testify or explain facts within their knowledge, what inferences can be drawn?
Strong inferences can be drawn from this, where the accused does not make an explanation
