Unit 17 Inferences from D's Silence and other conduct

Question 1

How are lies told by the defendant viewed?

Answer 1

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 therefore be relied upon by the prosecution as evidence supportive of guilt.

Question 2

Whenever a lie told by an accused is relied upon by the crown or used by the jury to support evidence of guilt, what direction should be given?

Answer 2

Lucas Direction: “The jury should in appropriate circumstances be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or a wish to conceal disgraceful behaviour.”

Question 3

What are the four situations where a Lucas Direction is usually required?

Answer 3

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 the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved.
4. Where although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so.

In these cases it will normally suffice to make two points in the direction:

(i) that the lie must be admitted or proved beyond reasonable doubt

(ii) that the mere fact that the accused lied is not in itself evidence of guilt since Ds may lie for innocent reasons, so only if the jury are sure that the accused did not lie for an innocent reason can a lie support the prosecution case.

Question 4

In which situations is there no need for a Lucas direction?

Answer 4

(1) when rejecting D’s explanation leaves jury with no logical choice but to convict

(2) when D offers explanation for lie, and judge deals w/ fairly in summing-up

Question 5

What two points should the Lucas direction cover?

Answer 5

1. first that the lie must be admitted or proved beyond reasonable doubt, and
2. secondly that the mere fact that the accused lied is not in itself evidence of guilt since defendants may lie for innocent reasons, so only if the jury are sure that the accused did not lie for an innocent reason can a lie support the prosecution case. 

Question 6

How should the court handle the silence of the accused?

Answer 6

Where the statutory scheme (ss34-38) comes into play, the court is under an obligation to ensure that the jury are properly directed regarding the proper inferences which can be drawn.

Question 7

Under what circumstances can inferences be drawn from A’s silence under s. 34?

Answer 7

If:

(1) that A failed to mention a fact later relied on his defence; and

(2) it could have been reasonably expected of A to mention the fact either
(a) before charge, on being questioned under caution by investigator; or
(b) on being charged or officially informed that he might be prosecuted.

Question 8

What inferences can be drawn from A’s silence under s. 34?

Answer 8

Any such inferences as appear proper

Question 9

Who can draw inferences under s. 34?

Answer 9

The court, in determining whether there is a case to answer, or the court and jury, in determining whether A is guilty

Question 10

What special rule applies to inferences under s. 34 if A’s silence occurred in the course of an interview at a PS/APD?

Answer 10

Inferences cannot be drawn until A has had opportunity to consult solicitor (unless they clearly and unequivocally waived their right to legal advice).

Question 11

Is s. 34 compatible with A’s right to a fair trial?

Answer 11

Generally yes, even if failure to give a proper direction. But must consider all circumstances of the case.

Question 12

Inferences drawn from silence cannot be the sole reason for…

Answer 12

(1) transfer to CC for trial
(2) finding a case to answer
(3) conviction

Question 13

Does s. 34 apply where the ‘new fact’ relied on (i.e. the one that was not previously disclosed) is relied on by A in the following form: A’s counsel puts specific questions to P’s witnesses to tease out this fact?

Answer 13

Yes

Question 14

Can any inferences be drawn from silence in response to questions that were NOT asked under caution?

Answer 14

No

If no questions under caution have been put, for example because the accused refuses to leave the cell for questioning, s. 34 cannot apply

Question 15

What counts as ‘questioning’ for the purposes of s. 34

Answer 15

Expressly or by necessary implication invited to give his account (no “Qs” need to be put). A prepared statement can be an answer to ‘a question under caution’

Question 16

What things must be considered in determining whether A ‘should have mentioned’ the fact in question?

Answer 16

Adverse inferences may be drawn from a fact subsequently relied on in defence only where the fact is one which, in the circumstances existing at the time, the accused could reasonably have been expected to mention (CJPO 1994, s. 34(1)).

In determining whether this is so, the following factors are important:

1. Reason for failure to mention -> if A gives evidence, this should be explored when A testifies
2. Characteristics of D
3. Failure of interviewer to disclose relevant info (which might have affected D’s ability to mention the relevant fact)
4. Legal advice to remain silent - but n.b. this does not prohibit adverse inferences to be drawn (see LPP reading as well)

Question 17

Can an adverse inference be drawn if A was never asked during the trial why they failed to mention the fact(s)?

Answer 17

No. ‘[T]he jury were invited to consider an adverse inference without knowing what if anything the appellant might have had to say about his silence.’ Ultimately an adverse inference is appropriate only 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.

Question 18

How should the court deal with legal advice to remain silent?

Answer 18

The fact that A relied on legal advice does not prohibit adverse inferences being drawn.

The real question that the jury is asked to consider is why D remained silent: i.e. they’re trying to find out whether he had a good, innocent (!) reason for staying silent or if he was just trying to take advantage of the right to remain silent (because he is guilty and didn’t have good answers to the questions asked).

Question 19

What is the judge’s role in relation to silence, what is the jury’s?

Answer 19

Judge → decides whether s.34 AI is capable of being drawn, then direction (direction should be given in all cases in which s. 34 is relied upon)

Jury → ultimate say on whether they draw AI and what AI

Question 20

What are the key elements of the direction that a judge should give where reliance is placed on s. 34?

Answer 20

1) Reminder that A was cautioned + told that he could remain silent but also that AI may be drawn

2) Identify the fact in question

3) Reasons given for failure to mention

4) Suggested inference to be drawn

• Most common = facts invented after interview

5) Whether jury thinks the prosecution case - as it stood at the time of questioning - called for an answer, and whether the only sensible explanation for A’s failure to answer it is that A had no answer at the time

6) Only draw adverse inference if ‘fair and proper’

7) Not to convict A wholly or mainly on the strength of it

Question 21

What is the relationship between inferences (a s34 direction) and lies (a Lucas direction)?

Answer 21

If something both:

(1) conceals fact later relied on and

(2) constitutes positive lie

Both a s. 34 direction and Lucas direction should be given

Usually should be given in combination. If given separately, must be consistent

Question 22

Under what circumstances do ss. 36 & 37 allow for inferences to be drawn?

Answer 22

5 cumulative conditions:

a. the accused is arrested;

b. a constable (not necessarily the arresting officer) reasonably believes that the object, substance or mark on the person/clothing (s.36), or the presence of the accused at the relevant place at or about the time of the offence (s. 37), may be attributable to the accused’s participation in a crime;

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.
(A Special warning should be given prior – C10.10 and C10.11)

e. A fails to account for the object/mark (etc) or his presence

Basically we’re talking about two situations - (1) where A is found with incriminating evidence and (2) A is found at the scene of the crime - where A might be asked what’s going on outside of a formal interview in involving caution (although according to the PACE codes A should really be taken to a station to be formally interviewed). Despite the informality of the situation, inferences may be drawn about A’s silence.

Question 23

What inferences can be drawn by virtue of ss. 36 & 37?

Answer 23

Any inferences that appear proper

The jury must be satisfied that the accused has failed to ‘account’ for the relevant matter and that any explanation advanced by the accused should be rejected as implausible before an inference can be said to be proper.

Question 24

What is s 36 concerned with?

Answer 24

Section 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.

Question 25

Does s. 36 or s. 37 permit the drawing of inferences in respect of the state or location of the accused at times other than arrest?

Answer 25

No

Question 26

Can inferences drawn under ss. 36 & 37 form the sole basis of conviction?

Answer 26

No!

Question 27

What is the difference between s. 36 and s. 37?

Answer 27

(a) Object/substance/mark on person/clothing/place → CJPOA 1994, s. 36

(b) Around time of offence, near location of a crime → CJPOA 1994, s. 37

Question 28

Under what circumstances are inferences from failure to testify permissible? Which provision are the rules found in?

Answer 28

CJPO 1994, s. 35:

(1) At trial

(2) D must be told at end of P’s evidence that he can give evidence

(3) D must be told that if he refuses to testify/answer Qs without good cause it will be permissible for the court or jury to draw adverse inferences
- Warning may come from judge or D counsel (make sure has legal advice)
- Normal for counsel to record D’s decision, signed and stated it was voluntary
- NB: duty of both court and D counsel

(4) D refuses to testify or answer certain Qs

Question 29

Must D be told of his right to testify on his own behalf at the PTPH?

Answer 29

Yes!

Question 30

What inferences may be drawn under s. 35?

Answer 30

Any that appear proper

Question 31

What constitutes ‘good cause’ for the purposes of s. 35?

Answer 31

(1) entitled to do so by enactment
(2) privilege
(3) court’s discretion

Question 32

How important is the court’s obligation to ensure the accused knows the consequences of failure to testify on his own behalf?

Answer 32

It is mandatory and cannot be overlooked even where the accused has absconded

Question 33

Can inferences be drawn from an accused with physical or mental limitations failing to testify?

Answer 33

Not if D’s physical/mental condition makes it undesirable to give evidence

• High threshold (very rare)
• Must be an evidential basis (voir dire may be required)

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. A voir dire may be required to determine the issue.

Question 34

What must the jury find to properly draw adverse inferences under s35?

Answer 34

The silence ‘can only sensibly be attributed’ to the accused having no answer, or none that would stand up to cross-examination.

Question 35

Can a judge direct a jury against making a s35 inference?

Answer 35

For a judge to advise a jury against drawing such an inference would require either ‘some evidential basis for doing so or some exceptional factors in the case making that a fair course to take’.

Question 36

Can inferences be drawn under s35 where the prosecution case is weak?

Answer 36

Inferences of guilt should not be drawn from failure to give evidence to support a prosecution case of ‘little evidential value’. This accords with the position at common law, where it was considered improper for a judge to bolster a weak prosecution case by making comments on an accused’s failure to give evidence

Question 37

What direction must the judge give if A fails to testify? What is the consequence of failing to give a proper direction?

Answer 37

Apparently there are ‘detailed rules’ on the content of such a direction (although we don’t seem to be told what they are). However, from the mock exam I gather that the judge needs to make at least the following 2 points:

1. make the jury aware that A was under no obligation to testify, and
2. that it is not mandatory for them to draw inferences from the failure to testify

Failure to give a proper direction gives rise to an arguable point of appeal