Unit 7 - Inferences (unit 17 BSB)

Question 1

Inferences
The following are the specific statutory provisions with which students should be familiar (and able to refer to by section number): sections 34, 35, 36 and 37 Criminal Justice and Public Order Act 1994. The following is the specific leading case authority with which students should be familiar (and should be able to refer to by name): Lucas

Question 2

Sections 34 - SILENCE AT INTERVIEW

Section 35 - SILENCE AT TRIAL

Section 36 - silence when arrests whilst in possession of incriminating objects/substances/marks

and

Section 37 - silence on arrest at the scene of the crime

Criminal Justice and Public Order Act 1994

Question 3

Can someone be convicted based on a lie?

Answer 3

NO!

• Lies told by the accused, on their own, do not make a positive case of any crime

Question 4

Then what does a lie show?

Answer 4

they may indicate a consciousness of guilt and in appropriate circumstances may therefore be relied upon by the prosecution as evidence supportive of guilt, as in Goodway [1993] 4 All ER 894

Question 5

Cases where a Lucas direction is required

Judge is required to give a Lucas direction WHEN (the FOUR Burge situations):

Answer 5

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.

The above are all situations where the prosecution say that, or the jury may erroneously
conclude that, the telling of a lie must mean that a D is guilty (i.e. that the lie is evidence
against the accused, in effect using it as an implied admission of guilt

Question 6

What points should the court make when making a Lucas Directions:

Answer 6

• as much as possible, be tailored to the circumstances of the case

It will normally suffice to make two points:

(1) first that the lie must be admitted or proved beyond reasonable doubt, and

(2) 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 7

When a Lucas direction is UNNECESSARY

Answer 7

Only need a direction WHERE: the prosecution say, or the judge envisages that the jury may say,
that the lie is evidence against the accused, in effect using it as an implied admission of guilt.

(1) The direction is not required in run-out-of-the-mill cases where the defence case is contradicted by the evidence of prosecution witnesses in such a way as to make it necessary for the prosecution to say that the accused’s account is untrue insofar as the two sides are in conflict.

(2) Direction not required simply because the jury may reject the evidence of an accused about a central issue in the case, because that situation is covered by the general direction on the burden & standard of proof.

(3) Don’t need a Lucas direction where, It is otiose, i.e. where the rejection of the explanation given by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic.

• Usually, lies relate directly to the matter they are on trial for.
  -If the only explanation behind a Defendant’s lie is that they are guilty of the offence, there is no difficulty in simply allowing the jury to assess the prosecution’s evidence and the D’s credibility in order to reach their conclusion.
• Eg, if D denies committing the burglary; if the jury are sure that D lied about participating in a burglary, the only sensible conclusion is that they are guilty of the offence.

(4) Don’t need where: the accused has offered an explanation for his lies and the judge has dealt
with that explanation fairly in his summing-up

Question 8

Does an accused have the Right to silence?

Answer 8

An accused person in a criminal trial has traditionally been accorded a ‘right to silence’, sometimes termed a privilege against self-incrimination.

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 9

Aspects of the right to silence recognised in domestic law:

Answer 9

• Accused is not a compellable witness at trial;
• Accused under no general duty to assist the police with their inquiries.

Question 10

YJCEA 1999, s59 and Sch 3: responding to Saunders v UK by restricting the use which can be made of evidence obtained under compulsion under a variety of statutory provisions including the Companies Act s343

Question 11

Previously at common law, were inferences generally permitted to be drawn from the exercise of the right to silence?

Answer 11

No.

no inferences were generally permitted to be drawn from the exercise of right to silence, either by a suspect under investigation or by an abused at his trial

• Prior to 1994: no evidential significance could be attached to accused’s decision to exercise right
  to silence; Ds had absolute right to say nothing; right to sentence in ECHR an essential part of our
  justice system

Where the statutory scheme does not apply = the common-law rule still applies.

Question 12

That right (no inferences from silence) has been eroded by ss34-38 CJPO 1994: specifies circumstances in which adverse inferences may be drawn from the exercise of the primary right to remain silent

Question 13

Where the statutory schemes applies = court is under obligation to ensure the jury are properly directed re the limited inferences which can be drawn (Condron v UK). ‘particular caution’ required by court before invoking the accused’s silence again him.

Answer 13

Whether the statutory scheme fulfils this requirement is a matter that is likely to continue to figure in criminal appeals

Question 14

What is an adverse inference?

Answer 14

a common sense conclusion that is adverse to the interests of a party in proceedings.

Question 15

Silence at interview, s34

Answer 15

Drawing adverse inference from silence occurs where the accused withholds when questioned matters that are subsequently introduced in support of adefence at trial.

Question 16

Criminal Justice and Public Order Act 1994, s. 34

[ THE LAW]

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) Where this subsection applies—

• (a) [repealed];
• (b) a judge, in deciding whether to grant an application made by the accused under paragraph 2 of schedule 3 to the Crime and Disorder Act 1998;
• (c) the court, in determining whether there is a case to answer; and
• (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.

(2A) Where the accused was at an authorised place of detention at the time of the failure, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in subsection (1) above.

(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.

(4) This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection
(1) above ‘officially informed’ means informed by a constable or any such person.

(5) This section does not—

• (a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section; or
• (b) preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section.

(6) This section does not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this section.

Question 17

s34

Failure to Reveal Facts

permits the tribunal of fact to draw ‘such inferences as appear proper’ from the:

Answer 17

Accused’s failure to reveal specific facts, provided that the various conditions set forth in s. 34(1) are made out and any questions of fact arising thereunder are resolved against the accused

Question 18

S34 Only applies where…

Answer 18

a particular fact is advanced by the defence which is suspicious by reason of not being put forward at an early opportunity (s34 does not apply simply because the accused has declined to answer questions)

Question 19

s34 also applies where the accused discloses the nature of the defence but fails to mention a particular fact that is relied upon at trial.

Answer 19

• in such a case there is a discretion whether to give a warning.

Question 20

S34 is primarily directed at the mischief of the positive defence following a ‘no comment’ interview and/or the ‘ambush’ defence.

Answer 20

Counsel should not complicate trials and summings-up by invoking the section unless the merits of the individual case require it

Question 21

s34
Common sense; where the accused has said enough in interview to set up the line of reasoning on which his defence was based, even if some points of detail are missing

Answer 21

= probably better to avoid a direction under s34 (that adverse inferences may be drawn).

Question 22

s34:

To give the direction (that adverse inferences may be drawn) in a case where the accused has put forward no more than a bare denial, would be tantamount to directing that guilt may be inferred simply from the exercise of the right to silence, which is NOT the purpose of s34.

Question 23

Adverse inferences consistent with Art 6 right to fair trial:

Answer 23

• ECtHR decisions confirm that: the mere fact that a trial judge leaves a jury with the option of drawing an adverse inference from silence in interview is not incompatible with the requirements of a fair trial.
• Whether the drawing of adverse inferences infringes Art 6 is a matter to be determined in light of all circumstances of the case, having regard to the situations where inferences may be drawn; the weight attached to them by the national court; and the degree of compulsion inherent in the situation.

Of particular importance: the terms of the judge’s direction to the jury on the drawing of adverse inferences.

o S34 has given rise to much more difficulty in directing the jury than s35 (failure to testify are trial)

Question 24

Is Failure to give a proper direction a breach of Art 6?

Answer 24

-Failure to give a proper direction
= not necessarily a breach of Art 6, nor necessarily renders a conviction unsafe:

eg in Chenia, C had received a fair trial, due to strength of the evidence; the fact that his failure to mention relevant facts was not
consequence upon legal advice; the clear & accurate direction given on the failure of C to give evidence in the case.

Question 25

Is Failure to give a proper direction a breach of Art 6?

Answer 25

-Failure to give a proper direction
= not necessarily a breach of Art 6, nor necessarily renders a conviction unsafe:

eg in Chenia, C had received a fair trial, due to strength of the evidence; the fact that his failure to mention relevant facts was not
consequence upon legal advice; the clear & accurate direction given on the failure of C to give evidence in the case.

Question 26

Access to legal advice

can there be adverse inferences due to silence when D was not allowed to seek legal advice?

Answer 26

S34 (2A) Where the accused was at an authorised place of detention at the time of the failure
or refusal, subsections (1) and (2) do not apply if he had not been allowed an opportunity to
consult a solicitor prior to being questioned, charged or informed as mentioned in subsection (1) above.

Question 27

Impact of the delay/lac of access to legal advice + adverse inferences

Answer 27

The lawful exercise of a power to delay access to legal advice could, where accused was at risk of adverse inferences being drawn, be sufficient to deprive accused of a fair procedure under Art 6

The dilemma is resolved by postponing the prospect that inferences will be drawn until the
accused has had the opportunity of consulting with a legal adviser

• The postponement occurs in exactly the same way whether access to legal advice is delayed lawfully or unlawfully

Question 28

Fact later RELIED UPON as part of his defence = Meaning of ‘Reliance’

Answer 28

No inference is available unless D later relies on the facts he failed to mention in interview.

Question 29

When does s34 not apply?

Answer 29

(1) To a fact that is undisputed; an admission by D of a fact relied on by the prosecution does not, without anything more, constitute reliance.

(2) S34 does NOT apply where accused makes no attempt to put forward at trial some previously undisclosed fact.

Question 30

The fact may be relied on even where it is not asserted by D in oral testimony = so s34 can
apply where the accused himself does not give evidence. Can ‘RELY’ on a fact by:

Answer 30

o The fact may be advanced by a witness;
o Or the fact may be elicited from a prosecution witness (in XX);
o The fact may be given by a co-defendant

Question 31

(Webber) An accused does ‘rely’ on a fact where counsel, acting on his instructions, puts a specific and positive case, in XX to prosecution witnesses (as opposed to asking questions intended to probe or test the prosecution case)

Answer 31

• The effect of specific & positive suggestions from counsel, whether or not accepted, is to plant in the jury’s mind the accused’s version of events. This may be so even if the witness rejects the suggestion, since the jury may mistrust the witness’s evidence.
• If a judge is in doubt whether counsel is merely testing the prosecution case or putting a
  positive case = counsel should be asked, in absence of jury, to make the position clear.
• But the positive case ought to be clear from the defence statement made in advance of trial.

Question 32

Can have ‘reliance’ where counsel adopts evidence given by a co-defendant

Question 33

Broad construction of a ‘fact’ which is relied on:

o Held that, the accused putting forward a possible explanation for his fingerprints being on a car number plate = a ‘fact’ as broadly construed in Webber.

o K’s belief in the guilt of 1+ named individuals of the crime with which he was charged was a ‘fact’ relied on.

Question 34

Where D has varied his account between interview and his testimony at trial = the Crown are
likely to argue that his evidence was not credible - correct approach might be a Lucas
direction rather than s34 direction.

Question 35

If prosecution fail to establish that the accused has failed to mention a fact =

Answer 35

jury should be
directed to drawn no inference.

Question 36

Where judge directs jury on basis that s34 applies, the direction should identify the facts relied on:

Answer 36

and should not be mixed with other, innocuous, facts from which no inference can be drawn.

Question 37

Where judge directs jury on basis that s34 applies: do they have to mention all facts?

Answer 37

Judge may be allowed some latitude in a complex case in not having to list all of the facts
which were not mentioned;
o But the identification of the specific fact/facts is generally required.

Question 38

Judge should discuss any proposed direction with counsel before closing speeches:
discussion with counsel will reduce the risk of mistakes.

Question 39

A fact can be “mentioned” through a PREPARED STATEMENT:

Answer 39

Where the accused at the relevant time gives a prepared statement in which certain facts are set forth, it cannot subsequently be said that there has been a failure to mention those facts.

(in some cases, A D will choose to put their explanation in a pre-prepared statement which is read out by their solicitor at the start of the hearing & will then subsequently answer ‘no comment’ to further questions)

Question 40

How can a prepared statement may be a dangerous for an innocent accused ?

Answer 40

If something significant has been omitted

Question 41

Since inconsistencies between the prepared statement and the defence at trial do not necessarily amount to reliance on unmentioned facts, the judge must be particularly careful

Answer 41

to pinpoint any fact that might properly be the subject of a s. 34 direction.

Question 42

Prepared statement: another way jury may be warned

Answer 42

The jury might be directed to regard differences between the prepared statement and the accused’s evidence at trial as constituting a previous ‘lie’, rather
than as basis for a s34 direction

Question 43

• Whilst under CAUTION:

o The accused must have been questioned under caution (s34(1)(a).

o The Caution: ‘you do not have to say anything. But it may harm your defence if you do not mention, when questioned, something you later rely on in court. Anything you do say may be given in evidence’.

o The caution serves to inform the accused of the effect of s34.

o If no caution administered when questioned = no adverse inference may be drawn from accused’s failure to mention the relevant fact.

Question 44

That he could REASONABLY have been expected to mention in the circumstances (facts which
should have been mentioned)

Answer 44

Adverse inferences only from a fact where the fact is one which, in the circumstances arising
at the time, the accused could reasonably have been expected to mention.

Question 45

If the accused gives evidence, his reason for failing to disclose should be explored

Answer 45

(1) And any explanation advanced by the accused for non-disclosure must be considered in deciding what inferences (if any) should be drawn.

(2) S34 direction should not be given if accused has not been given an opportunity to deal with the question of why he failed to answer question:

Question 46

That he could REASONABLY have been expected to mention in the circumstances (facts which
should have been mentioned)

In considering ‘reasonableness’, court is to consider:

Answer 46

The accused’s
(a) qualities,
(b) knowledge and
(c) any legal advice given

o Age, experience, mental capacity, health, sobriety, tiredness and personality.

Question 47

That he could REASONABLY have been expected to mention in the circumstances (facts which
should have been mentioned):

Another factor = failure of interviewer to disclose relevant information when asked to do so
by the accused or his legal adviser:

Answer 47

if little information is forthcoming, a legal adviser may well counsel silence until a better assessment of the case to answer can be made; but everything depends on the facts

Question 48

That he could REASONABLY have been expected to mention in the circumstances (facts which
should have been mentioned):
other facts to consider:

Answer 48

Normally, s34 cannot apply where the fact later relied on by the D was not known to him when questioned.

If the accused testifies, his reason for failing to disclose the fact should be explored; as should
any explanation given for the non-disclosure in order to assess what inferences should be drawn,
if any

Hilliard: D’s only chance to mention a fact was when a witness’s statement was read to him in interview; but he had not been told that he should correct any statement with which he
disagreed = held ‘unsafe’ to seek to draw an adverse inference.

M: where police in interview had mistakenly attributed a wrong date to the allegation (three
months later than the alleged offence had actually occurred), and M later relied on facts relevant to the earlier date which he hadn’t disclosed in interview = there were NOT facts which he could reasonably have been expected to mention in the context of the original investigation.

Question 49

The relevance of legal advice to remain silent

Difficult area:

Answer 49

o On one hand, courts want to avoid having D preclude s34 by advancing an explanation for silence that is easy to make and difficult to investigate because of
legal professional privilege.

o On other hand: it is of the greatest importance that Ds be able to be advised by their
lawyer without having to reveal the terms of that advice if they act in accordance with it

Question 50

Reliance on legal advice (even if genuine) does NOT itself preclude a court drawing adverse inferences (Condron)

Answer 50

f that was the case, all defendants would remain silent and then claim they had relied on solicitor’s advice.

Question 51

Instead, the jury are asked to consider the reasons why D chose to rely on the legal advice,
and whether that was ‘reasonable’ in the circumstances.

Answer 51

Did D honestly rely on the solicitor’s advice; or did they jump upon their advice because they knew they didn’t have an answer to the police’s questions that would stand up to scrutiny?

It depends on the view the jury take of the reason advanced by the accused, after having been directed that they should consider whether the silence can only sensibly be attributed to the accused having no answer or none that would stand up to questioning.

Question 52

There used to be two strands of authority:

1. Subjective approach: did the accused genuinely rely on legal advice?
2. Objective test: did the accused reasonably rely on legal advice?

Answer 52

CA: reconciles the two strands

Genuine (subjective) reliance by D on legal advice to remain silent does not in itself preclude adverse inference. ‘his belief in his entitlement (to remain silence) may be genuine, but it does not follow that his reason for exercising it is’

The TRUE question is: whether D remained silent ‘not because of that (legal) advice but because he had no, or no satisfactory, explanation to give’.

Question 53

Should the age and maturity of D and the complexity of the facts
relied on be considered by court in a case of D’s silence is reliant on legal advice?

Answer 53

YES

Question 54

Can inferences be drawn: Where the accused may have had a good defence but chose on legal advice to remain silent ?

Answer 54

–> no inference should be drawn:

Question 55

Can inferences be drawn: if jury are sure that D had no such defence and merely ‘hid behind the legal advice’ ?

Answer 55

YES!

Question 56

Waiver of privilege and statements

If an accused wishes to give an account of his reasons for silence following legal advice =

Answer 56

this may be difficult without waiving privilege

Question 57

No waiver if a bare assertion that he had been advised to remain silent

Answer 57

BUT little weight in likely to attach to such an assertion unless the reasons for it are before the court

Question 58

Where a D seeks to avoid adverse inferences by providing reasons for following the legal advice: Is this a waiver of legal privilege?

Answer 58

YES - almost certainly

Question 59

Where a D seeks to avoid adverse inferences by providing reasons for following the legal advice:

In this case, if the evidence of legal advice is given at a voir dire: is this a waiver of legal privilege?

Answer 59

yes!

Question 60

If D chose to make the content of the solicitor’s advice part of his defence he could not complain that the CJPO 1994 overrode the confidentiality of discussions with his legal adviser.

Question 61

Where waiver takes place = the accused may be questioned about what disclosures were made, even where it is accepted that the legal advice was given solely on the basis of the case as disclosed by the investigator

Question 62

But no waiver where the accused merely responds to an allegation of recent fabrication by stating that his defence was communicated to his solicitor =

in that case the adviser stands in the same position as any other person to whom the defence was
revealed, and no waiver is thereby involved.

Question 63

Tribunal draws any inferences that appear proper
Where the fact is one which the accused could reasonably have been expected to mention =

Answer 63

will be permissible to draw such inferences as appear proper

regarding:
determining guilt;
case to answer;
application to dismiss

Question 64

If the pre-conditions of s34(1) are met then the court may draw such inferences as appear proper from accused’s silence. These include:

Answer 64

1. That the fact relied on has been invented after the interview (the most common/standard inference)
2. That the accused had the fact in mind at the time of interview, but was unwilling to expose his account to scrutiny;
3. That the accused was faced with a choice between
   (a) silence and
   (b) lying or incriminating himself further with the truth

Question 65

It follows that: even if it is common ground that an accused spoke to his solicitor about a
proposed defence of alibi before any interview took place =

Answer 65

his failure to reveal the alibi in
interview was still a matter from which inferences could be drawn if the jury were unconvinced
by the accused’s explanation.

Question 66

Where the prosecution suggest the inference to be drawn is not the standard inference
(recent fabrication), but a less severe inference = the judge should make this clear in
summing up.

Question 67

DIRECTION as to permissible inferences

Directing the jury on s34

Answer 67

a CLEAR JUDICIAL DIRECTION is required, as to the nature of the inference that may properly be drawn.

Question 68

Role of Judge and Jury (s34)

Answer 68

• The judge decides, as a matter of law, whether an inference under s34 is capable of being drawn.
• an inference is in fact drawn is a matter of fact entirely for the jury.

Question 69

DIRECTION as to permissible inferences

Directing the jury on s34

The key elements of the direction as they appear in the Compendium are:

Answer 69

• (1) a reminder that the accused was cautioned that he or she did not have to say anything, and therefore had a right to say nothing, but was also warned that conclusions might be drawn from failure to mention facts later relied on;
• (2) (a) the identification in consultation with the advocates of the facts which were not mentioned but are now relied on in defence together with;
• o (b) any reasons given for the failure to mention those facts; and
  o (c) the conclusions it is suggested might be drawn (usually that the fact has been made up after interview and is not true);
• (3) an instruction to consider whether the prosecution case as it stood at the time of the interview clearly called for an answer, and if it did, to consider whether, taking account of any explanation given by the accused, there was no sensible explanation for the failure other than that the accused had no answer at the time or none that would stand up to scrutiny.
• (4) an instruction only to draw an adverse conclusion if it is ‘fair and proper’ to do so, and in any case not to convict the accused wholly or mainly on the strength of it.

(5) An instruction to consider whether the prosecution case as it stood at the time of interview clearly called for an answer;

and, if it did, to consider whether, taking account of any explanation given by the accused, there was no sensible explanation for the failure other than that he had no answer at the time or none that would stand up to scrutiny.

Question 70

In magistrates’ courts, T v DPP [2007] EWHC 1793 (Admin) offers a simple, three-stage test when applying s. 34 (at [26]):

Answer 70

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?

• The test provides a useful reminder to the parties to summary proceedings to be clear about identifying the facts on which the inference is said to be based

Question 71

The potential for an adverse inference direction should be raised early, in order that the reasons behind the D’s silence can be explored in evidence if necessary

Answer 71

Trial judge ought not to leave it open to the jury to make use of silence which, because the defence did not expect to have to explain, has not been the subject of any comment by the accused or the defence witnesses.

o If the judge thinks that s34 might come into play = the matter should be raised in time for it to be the subject of evidence, not speculation.

o But if there has been no discussion with counsel of the intended direction, but it is
clear to the defence that the prosecution are relying on accused’s failure to mention a
specific fact = it is unlikely that the omission will render the trial unfair.

Question 72

Provided the judge has given the proper directions re s34 = the judge may make fair comment on the evidence and is not obliged to ‘sit quiet’.

Answer 72

eg, in Sakyi: on the facts, was legit where judge commented that: it was D not his solicitor, who ran the risk of being charged with the offence and it was D’s choice
whether to accept the advice to remain silent.

o And legit where judge commented that: had the defence been true, it would have provided a 100% defence to the charge, so why would D not reveal it?

Question 73

Direction where there is more than one accused:

Answer 73

If A has failed to mention a relevant fact so as to attract a s34 direction; it is desirable in the case of co-accused B whose case stands or falls with A’s to give a direction not to draw any inference against B.

o Where more than one accused attracts a s34 direction = judge should avoid dealing with their cases compendiously, but should identify what each has said at trial that he did not say earlier.

Question 74

Where misdirection may not result in an unsafe conviction:

Answer 74

Adetoro: failure of judge to direct should that they should specifically reject the accused’s reason for silence before drawing an inference was not fatal to the fairness of the trial where the jury must, in rejecting the accused’s defence, have also rejected his reason for remaining silent.

Question 75

S34 vs LUCAS: A direction may be called for re something said by the accused which the prosecution claim both conceals a fact later relied on; AND constitutes a positive ‘LIE’:

Answer 75

In such a case it may require both a s34 direction and a Lucas direction

But CA: it is usually unhelpful to give both directions = judge should select and adapt the direction more appropriate to the facts and issues in the case.

o If two separate s34 and Lucas directions are given = it is important that they are
consistent.

o Stanislas: a s34 direction was given; but that was given, there was no need for a Lucas direction, the function of which is to point out that there might be an innocent reason for lying.

Question 76

Criminal Justice and Public Order Act 1994, ss. 36 [THE LAW]

Answer 76

36.—
(1) Where—
* (a) a person is arrested by a constable, and there is—
*
o (i) on his person; or
o (ii) in or on his clothing or footwear; or
o (iii) otherwise in his possession; or
o (iv) in any place in which he is at the time of his arrest, any object, substance or mark, or there is any mark on any such object; and
* (b) that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and
* (c) the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and
* (d) the person fails or refuses to do so,
* then if, in any proceedings against the person for the offence so specified, evidence of those matters is given, subsection (2) below applies.
(2) Where this subsection applies—
* (a) [repealed];
* (b) a judge, in deciding whether to grant an application made by the accused under paragraph 2 of schedule 3 to the Crime and Disorder Act 1998;
* (c) the court, in determining whether there is a case to answer; and
* (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure or refusal as appear proper.
(3) Subsections (1) and (2) above apply to the condition of clothing or footwear as they apply to a substance or mark thereon.
(4) Subsections (1) and (2) above do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.
(4A) Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.
(5) This section applies in relation to officers of customs and excise as it applies in relation to constables.
(6) This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for the presence of an object, substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this section.
(7) This section does not apply in relation to a failure or refusal which occurred before the commencement of this section.

Question 77

Criminal Justice and Public Order Act 1994, ss. 37 [THE LAW]

Answer 77

37.—
(1) Where—
* (a) a person arrested by a constable was found by him at a place at or about the time the offence for which he was arrested is alleged to have been committed; and
* (b) that or another constable investigating the offence reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence; and
* (c) the constable informs the person that he so believes, and requests him to account for that presence; and
* (d) the person fails or refuses to do so,
* then if, in any proceedings against the person for the offence, evidence of those matters is given, subsection (2) below applies.
(2) Where this subsection applies—
* (a) [repealed];
* (b) a judge, in deciding whether to grant an application made by the accused under paragraph 2 of schedule 3 to the Crime and Disorder Act 1998;
* (c) the court, in determining whether there is a case to answer; and
* (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure or refusal as appear proper.
(3) Subsections (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.
(3A) Where the accused was at an authorised place of detention at the time of the failure or refusal, subsection (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.
(4) This section applies in relation to officers of customs and excise as it applies in relation to constables.
(5) This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for his presence at a place which could properly be drawn apart from this section.
(6) This section does not apply in relation to a failure or refusal which occurred before the commencement of this section.

Question 78

Neither s. 36 nor s. 37 of the CJPO 1994 permits an inference to be drawn unless four conditions are satisfied:

Answer 78

• (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.

Question 79

TIMING OF S36 AND S37

Answer 79

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, e.g., when seen by an eye-witness at the time of the crime, and s. 37 applies only when the accused was found at the location of the crime ‘at or about the time of the commission of the alleged offence and not, for example, if a suspect gives the police the slip at the scene and is arrested elsewhere.

Question 80

S36 is concerned with the STATE of the suspect at the time of his arrest: it does not matter how much time elapses between the incident and arrest, provided the inference remains relevant.

Answer 80

Eg, McGeough: M was identified as a gunman who had been shot in self-defence in course of an attempted murder in 1981 by the scarring that the bullet wound left on his body; his failure to account for scarring was the subject of adverse inference in 2010.

Question 81

s36 and s37

There is no qualifying provision of ‘reasonableness’ in this provision (i.e no consideration, as with s34, of whether it was reasonable to remain silent) = the only question is:

Answer 81

whether the accused has accounted for the object/substance/mark. (s36)

whether the accused has accounted for his presence at the scene. (s37)

Question 82

TIMING OF S36 and s37

Answer 82

Only permits drawing of inferences re state of accused at time of arrest, not at other times, eg when seen by an eye-witness at the time of the crime.

Question 83

Silence on arrest at the scene of the crime (s37 CJPOA)

Answer 83

–> Where accused fails or refuses to explain = court may draw such inferences as appear proper

Can draw adverse inferences re:

1. a judge in deciding whether to grant an application to dismiss (in Crown Court);
2. court in determining whether there is a case to answer; and
3. court or injury in determining whether accused is guilty of the offence charged.

Question 84

An inference drawn under ss. 36 and 37 : no explaination from D

Answer 84

• The fact that the accused gave no explanation cannot prevent the circumstances having this effect: on the contrary, it strengthens the inference to be drawn from them. Perhaps the intention behind the provision is to prompt the judge to tell the jury not to convict just because the accused has been unhelpful.

Question 85

s35, Failure to testify

Previously:

Answer 85

The 1898 Act provided that the failure of the accused to testify was not to be made the subject of any comment by the prosecution.

Limited comment by the judge was permissible (Bathurst [1968]), though stronger comment was permitted where the defence case involved the assertion of facts which were at variance with the prosecution evidence, or additional to it and within the accused’s own knowledge

Question 86

s35, Failure to testify

Now:

inferences from failure are permissible

The nature of the inference available will depend on:

Answer 86

1. the way in which the evidence has developed and
2. the strength of the prosecution case

The old authorities continue to provide a common-sense guide to the type of case in which the strongest inferences may be drawn

Question 87

s35, Failure to testify: what should the judge direct?

Answer 87

A careful direction will be required in all cases in which accused does not testify; to make the jury aware of the inferences which may properly be drawn

One of the purposes of the direction is to make the jury aware that the right to silence still exists in the sense that the accused is under no obligation to testify

Question 88

Criminal Justice and Public Order Act 1994, s. 35

[THE LAW]

Answer 88

(1) At the trial of any person for an offence, subsections (2) and (3) below apply unless—
* (a) the accused’s guilt is not in issue; or
* (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;
* but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.
(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself(in the case of proceedings on indictment with a jury, in the presence of the jury) 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.
(5) For the purposes of this section a person who, having been sworn, refuses to answer any question shall be taken to do so without good cause unless—
* (a) he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or
* (b) the court in the exercise of its general discretion excuses him from answering it.
(6) [Repealed.]
(7) This section applies—
* (a) in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section;
* (b) in relation to proceedings in a magistrates’ court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section.

Question 89

s35: For an adverse inference to be drawn, D must be told of

(a) right to testify;

(b) possibility of adverse inferences

Answer 89

(a) be told at the conclusion of the prosecutions’ case that the time has now arrived when he may give evidence;

(b) Be warned (by either Judge or Defence Counsel) that the jury may draw adverse inferences from his failure to testify.

Question 90

s35: when D is warned by either Judge or Defence Counsel) that the jury may draw adverse inferences from his failure to testify: should this be done in the presence of the jury

Answer 90

Yes

This must be done in the presence of the jury, so that they are aware that D has made an informed decision not to give evidence.

Question 91

s35 (notes)

S35(2): court must satisfy itself that the accused knows that he can, if he wishes, give evidence.

Answer 91

This is mandatory, cannot be overlooked (even where the accused has, by absconding, put
himself beyond the reach of the warning).

Question 92

pre-trial, accused right to give evidence

Answer 92

The pre-trial process requires that at a PTPH the court is satisfied that the accused understands the right to give evidence

Question 93

What should counsel for D do if he does not wish to give evidence?

Answer 93

counsel normally records the decision of the accused not to give evidence, and signs it

= indicating it was made voluntarily.

Question 94

s35: potential capacity issue

Answer 94

The decision is frequently a stressful one for the accused, and where there is a potential issue as to the accused’s capacity to make such a decision it is of particular importance that the necessary considerations are fully and properly spelled out

Question 95

s35: in case D is misadvised or or was not in a position to make an informed decision:

Answer 95

the appellant must provide the court with a statement setting out the relevant history

Question 96

Under s35, the proper inferences come about as a result of:

Answer 96

o (a) the failure of the accused to give evidence; OR
o (b) his refusal without good cause to answer any question

Question 97

under s35, can inferences be given if D has a potential medical condition?

Answer 97

ONLY where D’s physical or mental condition make it undesirable for them to give evidence.

Question 98

other than the exceptions in s35(5): should accused answer all Qs?

Answer 98

the accused must answer all proper questions, or risk
the drawing of inferences; and a judge may remind accused of his duty in this regard (though
not in an oppressive way).

Question 99

S35(5), exceptions where accused has ‘good cause’ for refusing to answer question (so no adverse inferences) where:

Answer 99

a) the accused may be excused from answering a particular question on grounds of privilege or statutory entitlement; OR

b) in the discretion of the court.

Question 100

No inferences where S35(1)(b): Accused with ‘physical or mental’ limitations

Answer 100

• only in care cases

Friend: D had limited powers of comprehension; but he had given a clear account of his defence
prior to trial; trial judge ruled that D’s mental condition did not make it ‘undesirable’ for him to
give evidence = and so his failure to give evidence might allow jury to draw inferences. CA
agreed = only in a rare case would judge find that s35(1)(b) applied.

Question 101

No inferences where S35(1)(b): Accused with ‘physical or mental’ limitations: not common because:

Answer 101

Because the accused that is unable to comprehend proceedings would normally be unfit to
plead, and thus the issue is unlikely to arise. (normally, if the accused is fit to be tried, he
will be fit to testify).

Question 102

No inferences where S35(1)(b): Accused with ‘physical or mental’

[CASE LAW]

Answer 102

• D was tried for murder. He had a physical age of 15, a mental age of nine, and an IQ of 63. Expert evidence suggested that, although not suggestible, his powers of comprehension were limited and he might find it difficult to do justice to himself in the witness-box. Nevertheless D had given a clear account of his defence at various stages prior to trial. Taking all these matters into account, the trial judge ruled that D’s mental condition did not make it ‘undesirable’ for him to give evidence, so that his failure to do so led to the jury being directed that they might draw inferences under s. 35(3).
• In Burnett [2016] EWCA Crim 1941, an 87-year-old man whose long-term memory was impaired was tried for sexual offences alleged to have occurred 50 years previously. The Court of Appeal declined to hold that it was wrong to give a s. 35 direction, although other judges might have decided against it. There were matters which D appeared to recollect well enough to give an account of them in cross-examination, and the judge was clearly prepared to ensure that, had D given evidence, the process could have been conducted with due sensitivity to his condition.
• Friend and Burnett both indicate that s. 35(1)(b) gives a wide discretion to a trial judge. The trial judge in Friend seems to have been much influenced by the fact that measures can be taken by which vulnerable defendants can, if their needs are correctly assessed, be protected from unfair or oppressive cross-examination.
• In Tabbakh [2009] EWCA Crim 464, the trial judge was held entitled to conclude that D’s history of self-harm and post-traumatic stress disorder did not render it undesirable for him to give evidence: the risk that he might react in a hostile way to questioning and lose his self-control was one which could be taken into account by the jury, and did not justify a comprehensive failure to testify.
• In Ensor [2009] EWCA Crim 2519, [2010] 1 Cr App R 18 (255), it was held that s. 35(1)(b) requires that the accused’s physical or mental condition is such that if the accused gives evidence it will have a ‘significantly adverse effect on him’.
• However, in Dixon it was pointed out that the sole issue in Ensor related to the adverse effect on D’s health, and that there was no warrant for confining s. 35(1)(b) to such cases. In Dixon it was held relevant to consider D’s difficulty in expressing himself and his problems of understanding, which were such that the judge had made an intermediary available to assist him had he testified. Nevertheless these features did not, properly considered, require the judge to find that it was undesirable for D to testify. In Charisma [2009] EWCA Crim 2345, an alleged loss of memory of the incident did not amount to a justification for not giving evidence in which the memory loss could have been tested.
• In Mulindwa [2017] EWCA Crim 416, [2017] 4 WLR 157, the Court of Appeal rejected an argument that it was necessarily ‘undesirable’ for a defendant with an ongoing mental disorder to give evidence if the only way in which this could fairly be done would be if the evidence were accompanied by expert evidence explaining to the jury why some of the accused’s testimony might be unreliable. As to the extent to which a psychiatrist or a psychologist can properly comment to the jury on the presentation in evidence of a mentally disordered defendant,

One such rare case was Hamberger [2017] EWCA Crim 273, [2017] 2 Cr App R 9 (81), in which D, who suffered from angina, was fit to be tried but not to testify, and it was agreed that no adverse inferences should be drawn.

• Both Friend and the later decision in A [1997] Crim LR 883 require there to be an evidential basis for a ruling that s. 35(1)(b) applies. A voir dire may be required to determine the issue, although the judge is, according to A, under no obligation to initiate the procedure if defence counsel does not seek to do so.
• In R (DPP) v Kavanagh [2005] EWHC 820 (Admin), it was doubted whether, even in summary trial, non-expert evidence (such as that of a family member) as to the mental condition of the accused could be sufficient. In that case D’s mother had testified to his history of depression, but even her evidence taken at its highest fell short of disclosing a subsisting condition making it undesirable for him to give evidence.
• In Anwoir [2008] EWCA Crim 1354, [2008] 2 Cr App R 36 (532), it was held that a judge could revisit a ruling that it was undesirable for an accused to testify. However, it was on the facts of that case unfair for the medical evidence relied on by D and rejected by the judge to be withheld from the jury, as it was essential to their assessment of the extent to which they should take into account his failure to give evidence.

Question 103

No inferences where S35(1)(b): Accused with ‘physical or mental’ limitations:

THIS IS RARE

Answer 103

So, the ASSUMPTION = it is generally desirable for an accused to testify, it will be very rare to be ‘undesirable’, and so normally s35(1)(b) will not apply and failure to testify can lead to a s35 direction.

It is relevant to consider the accused’s difficulty in expressing himself and his problems of understanding: but such features may not lead judge to find it was undesirable for D to testify

Alleged loss of memory did not amount to a justification for not giving evidence, in which
the memory loss could have been tested.

Question 104

No inferences where S35(1)(b): Accused with ‘physical or mental’ limitations:

How will judge determine this issue?

Answer 104

There must be an evidential basis for a ruling that s35(1)(b) applies

• a voir dire may be required to determine the issue, though judge is under no obligation to initiate the procedure if defence counsel does not seek to do so.

Question 105

Nature of Inference under s. 35

Answer 105

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’

Question 106

Timing of s35 during trial?

Answer 106

The timing at which an accused testifies is after closing of Crown’s case; so it
presupposes that a prima facie case has already been established against the accused before an adverse inference can be drawn under s35.

Question 107

s35
The accused is not compellable to testify, but must risk the consequences if he does not do
so: these consequences are not simply that specific inferences may be drawn from specific facts, but include in a proper case the inference that the accused is guilty

Answer 107

If there is no prima facie case shown by the prosecution = there is no case to answer.

Equally, if parts of the prosecution case had so little evidential value that they called
for no answer = a failure to deal with those specific matters cannot justify an inference
of guilt.

On the other hand, if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty.

Question 108

S38(3): NO conviction based SOLELY on the basis of a s35 adverse inference.

Answer 108

Accused cannot be convicted solely on an inference drawn from a failure or refusal.

CA: the prosecution remain under an obligation to establish a prima facie case before any question of the accused testifying is raised;

Question 109

S35 Before drawing any inferences: the judge should make clear to the jury that they MUST

Answer 109

find a ‘case to answer’/a prima facie case:

CA: the judge should make clear to jury that they must be convinced of the existence of a prima facie case before drawing an adverse inference from silence.

• o This seems to go beyond the strict requirement of the statute

Question 110

S38(3): NO conviction based SOLELY on the basis of a s35 adverse inference. [NOTES]

Answer 110

• In a case where there is a compelling case for the accused to answer, has been
  held that the failure to direct in this respect could not affect the safety of the conviction.

This direction (that jury must find a prima facie case before considering the
implications of the accused’s silence)-> is already implied in the separation direction
that failure to give evidence cannot by itself prove guilt [cannot convict solely on
that basis]: the former direction merely ‘amplifies and spells out’ what is already
implicit in the latter

So failure to give the direction that jury should first find a case to answer may not lead to an unsafe conviction; if there are clear directions given to jury that they must be
‘sure’ that complainant was not lying and that the accused’s silence was not by itself
proof of guilt

Question 110

s35: Drawing an Inference: General Rule

Answer 110

Cowan, CA: s35 is not limited to exceptional cases, it is the norm; (indeed the exceptional
cases are the provisions are not invoked under s35(1), where guilt not in issue or physical/mental condition).

Question 111

s35
* Though is open to a court to decline to draw an inference from silence; though for a judge to advise a jury against drawing such an inference would require either:

Answer 111

• ‘some evidential basis for doing so; or
• some exceptional factors in the case making that a fair course.

Question 112

s35

So high burden of ‘exceptional’ cases to get a direction that s35 inferences can’t be drawn:

Answer 112

o Eg HL endorsed the practice of giving a s35 direction notwithstanding that accused had
made a tactical decision not to testify in order to keep his bad character from being
revealed (though this situation wouldn’t apply now due to bad character provisions).

o Eg not valid argument that accused fears that if he testifies the prosecution will
pursue an application to adduce evidence of bad character.

o Eg was not valid argument where D claimed that the failure of the police to interview him
while the frauds were fresh in his mind should have led to direction of no adverse
inference from silence at trial.

Question 113

s35: An inference cannot be drawn unless jury decide that the silence ‘can only sensibly be attributed to’ the accused having no answer, or none that would stand up to cross-examination:

Answer 113

eg, in cases where the accused suffers from a condition that falls short of one making it ‘undesirable’ for him to give evidence under s35(1)(b); it is open to the jury to
conclude that his reason for not testifying relates to the condition rather than to his
having no answer.

o CA restated importance of the direction: must not leave jury with the impression that
an inference could be drawn in any other case, such as where the accused’s
testimony would merely have been ‘of assistance’ to them.

Question 114

A s35 direction will probably point out that the first effect of absence of evidence from D is that D has deprived the jury of contradiction or explanation of prosecution evidence =

Answer 114

such observation can only be made fairly if the uncontradicted evidence must concern a matter about which the accused can confidently be expected to have personal knowledge

Question 115

No Inference where Prosecution Case is Weak

Answer 115

Murray: inferences of guilt should not be drawn from failure to give evidence to
contradict a prosecution case of ‘little evidential value’

HOWEVER, Div Court: once it has been decided that there was a case to answer

= the failure of accused to give evidence about relevant matters in his police interview (in the absence of evidence of a reason for his silence) -> made the drawing of an inference
permissible.

Question 116

Strong Inference where Facts Clearly Call for Explanation or are within the Accused’s Knowledge

Answer 116

Where there are uncontested or clearly established facts which point so strongly to guilt as to call for an explanation = a stronger comment/inference may be justified

Question 117

Where there are uncontested or clearly established facts which point so strongly to guilt as to call for an explanation = a stronger comment/inference may be justified [CASE LAW]

Answer 117

(1) - In Mutch [1973] 1 All ER 178, 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. Corrie (1904) 20 TLR 365 and Bernard (1908) 1 Cr App R 218 are cited in Mutch as exceptional examples of the kind ofcase in which such an inference may properly be drawn.

(2)