Unit 7 Inferences from the Defendant

Question 1

What is Legal Advice Privilege?

Answer 1

Communications between client and legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated at the time

Question 2

What is Litigation Privilege?

Answer 2

Communications between client or legal adviser and third parties, the sole or dominant purpose of which was to enable the legal adviser to advise or act in relation to litigation that was pending or in the contemplation of the client.
The privilege also covers items enclosed with or referred to in such communications and brought into existence
i. in connection with the giving of legal advice or
ii. in connection with or in contemplation of legal proceedings and for the purposes of such proceedings

Question 3

Where does the evidential burden lie in claiming privilege?

Answer 3

The evidential burden of establishing that a document or communication is privileged lies on the party claiming privilege.

Question 4

What does Legal Advice Privilege cover?

Answer 4

Legal advice privilege covers communications between clients and their legal advisers for the dominant purpose of obtaining or giving legal advice. It also covers documents evidencing such communications and documents intended to be such communications, even if not in fact communicated

Question 5

What do you need to establish for Legal Advice Privilege?

Answer 5

In order to establish legal advice privilege it needs to be shown that the purpose of obtaining or giving legal advice was the dominant purpose. The communications must have been made either in the course of the relationship between client and legal adviser or with a view to its establishment. The privilege extends to instructions given by the client to the solicitor or by the solicitor to the barrister and to counsel’s opinion taken by a solicitor.

Question 6

What does Legal Advice Privilege NOT extend to?

Answer 6

Documents emanating from, or prepared by, independent third parties and passed to the lawyer for the purposes of advice are not privileged.

Question 7

Are other documents given to lawyers for the purpose of gaining legal advice, privileged?

Answer 7

At common law, a legal adviser (or third party) has no greater privilege than the client. Thus, a document that is not privileged in the hands of the client does not become privileged if given into the custody of a lawyer for the purposes of obtaining legal advice.

Question 8

Communications in furtherance of crime or fraud

Answer 8

A criminal intent on the part of a stranger to the relationship of a solicitor and client destroys the privilege of the client.
Ex parte Francis provides persuasive authority that the intention of furthering a criminal purpose may be that of the client, the solicitor or any other person. That case concerned the construction of the PACE 1984, s. 10(2), which provides that: ‘Items held with the intention of furthering a criminal purpose are not items subject to legal privilege’.
What is relevant is the intention of the person holding the items in question

Question 9

How are lies told by the defendant viewed?

Answer 9

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 10

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 10

Lucas Direction

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, for example, in an attempt to bolster up a just cause, or out of shame or a wish to conceal disgraceful behaviour.
c. The lie must be established by evidence other than that of the witness who is to be corroborated.

Question 11

What is the 3-fold Lucas Direction? (Lies)

Answer 11

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, for example, in an attempt to bolster up a just cause, or out of shame or a wish to conceal disgraceful behaviour.
c. The lie must be established by evidence other than that of the witness who is to be corroborated.

Question 12

What are the four Burge [1996] situations where a Lucas Direction is usually required?

Answer 12

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.

Question 13

What two points should the Lucas direction cover?

Answer 13

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 14

What law enforces the right to silence/privilege against self-incrimination?

Answer 14

These concepts are not specifically mentioned in the rights guaranteed by the ECHR, Article 6, but it has been held that they constitute ‘generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6’

Question 15

How much the court handle the silence of the accused?

Answer 15

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 16

S34(1) CJPO provides for what circumstances that inferences may be drawn from silence?

Answer 16

(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 section 22 of the 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) below applies…

… (2)(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.

Question 17

What is the object of allowing inferences from silence?

Answer 17

‘to deter late fabrication and to encourage early disclosure of genuine defences’.
Section 34 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. 

Question 18

What must the court NOT do as a result of inferences drawn from silence (s38 CJPO)

Answer 18

(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 section 34(2), 35(3), 36(2) or 37(2).
(4)     A judge shall not refuse to grant such an application as is mentioned in section 34(2)(b), 36(2)(b) and 37(2)(b) solely on an inference drawn from such a failure as is mentioned in section 34(2), 36(2) or 37(2).
Section 38(3) applies to all four of the provisions of the 1994 Act which operate to permit the drawing of inferences from silence, and s. 38(4) to the three appertaining to out-of-court silence.

Question 19

When does s34 (silence) not apply?

Answer 19

Section 34 of the CJPO 1994 does not apply where there is no attempt to put forward at trial some previously undisclosed fact. Reliance on the disputed new fact is key.
In Webber [2004] UKHL 1, [2004] I All ER 770 it was held that a fact or matter is relied on not only where the accused gives or adduces evidence of it but also where counsel, acting on instructions, puts a specific and positive case to prosecution witnesses, as opposed to asking questions intended to probe or test the prosecution case.

Question 20

Can any inferences made before a suspect is charged be drawn?

Answer 20

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’ (s. 34(1)(a)). The reference to ‘constable’ includes others charged with investigating offences (s. 34(4)). If no questions under caution have been put, for example because the accused refuses to leave the cell for questioning, the section cannot apply, as the statutory language cannot be ignored.

Question 21

Relying on facts which should have been mentioned (s34 inferences)

Answer 21

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)).

Question 22

Can the judge invite for adverse inferences to be drawn if the facts haven’t been put to the defendant before the jury?

Answer 22

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 23

How should the court deal with legal advice to remain silent? (2 strands of authority)

Answer 23

1. favouring a subjective test (did the accused genuinely rely on legal advice?)
2. an objective test (did the accused reasonably rely on legal advice?)
   ‘genuine reliance by a defendant on his solicitor’s advice to remain silent is not in itself enough to preclude adverse comment’.
   The true question is whether D remained silent ‘not because of that advice but because he had no or no satisfactory explanation to give’.
   Where the accused may have had a good defence but chose 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.

Question 24

3 stage test for applying section 34 in magistrates courts (T v DPP)

Answer 24

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?

Question 25

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

Answer 25

A direction may also be called for in relation to something said by the accused which the prosecution claim both conceals a fact later relied on and constitutes a positive lie. In such a case the facts may require that both a s.34 direction and a Lucas direction should be given.

Question 26

Section 36&37 (inferences from the defendant’s failure to account for objects, substances and marks and from the defendant’s failure to account for his presence at the scene of a crime) require what basis for inferences to be drawn?

Answer 26

Neither s. 36 nor s. 37 of the CJPO 1994 permits an inference to be drawn unless four conditions are satisfied:
a. the accused is arrested;
b. a constable (not necessarily the arresting officer) 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 a crime (in s. 36 an offence ‘specified by the constable’; 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.
(A Special warning should be given prior – C10.10 and C10.11)

Question 27

What inferences can be drawn from Section 36&37 (inferences from the defendant’s failure to account for objects, substances and marks and from the defendant’s failure to account for his presence at the scene of a crime)

Answer 27

s with s. 34, only ‘proper’ inferences may be drawn. 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 28

What is s36 concerned with?

Answer 28

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 29

At what point to s36&37 apply?

Answer 29

Neither s. 36 nor s. 37 permits the drawing of inferences in respect of the state or location of the accused at times other than arrest

Question 30

Are inferences from failure to testify permissible?

Answer 30

Yes. Under the CJPO 1994, s. 35, inferences from failure to testify are permissible. 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. 

Question 31

What should the prosecutions satisfy itself of to rely on inferensces from failure to testify?

Answer 31

S35(2) CJPO: 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 cause 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.

Question 32

How important is the court’s obligation under s35(2)? (to ensure the accused knows the consequences of failure to testify)

Answer 32

The court’s obligation in s. 35(2) to satisfy itself that the accused knows of the entitlement to give evidence 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

Section 35(1)(b) of the CJPO 1994 contemplates that 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.  
s. 35(1)(b) gives a wide discretion to a trial judge.
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 is the nature of an inference drawn under s35? (failure to testify)

Answer 34

The adverse inference which it may be proper to draw under s. 35(3) of the CJPO 1994 is that the accused ‘is guilty of the offence charged’. As s.35 does not come into play until after the close of the evidence for the prosecution, it presupposes that a prima facie case has already been established against the accused. 

Question 35

Can an accused be convicted based on inferences from section 34-37?

Answer 35

The accused cannot be convicted solely on an inference drawn from a failure or refusal

Question 36

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

Answer 36

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

Question 37

Can a judge direct a jury to make a s35 inference?

Answer 37

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 38

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

Answer 38

Inferences of guilt should not be drawn from failure to give evidence to contradict 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 39

Where can a stronger comment on adverse inferences from failure to testify (s35) be justified?

Answer 39

Where Facts Clearly Call for Explanation or are within the Accused’s Knowledge: the Court of Appeal identified exceptional cases at common law in which stronger comment was justified. They were those in which an inference could be drawn from uncontested or clearly established facts which point so strongly to guilt as to call for an explanation. (e.g. the accusation of the police planting evidence)