17. Inferences from D’s silence and other conduct

Question 1

what is a lucas direction for?

Answer 1

to remind the jury that sometimes people lie in order to bolster up a just cause or out of shame/to conceal behaviour

Question 2

when should a lucas direction be given ?

Answer 2

when a lie told by accused is relied on by pros or by jury to support evidence of guilt rather than just accuseds credibility.

Question 3

4 situations where lucas direction usually required?

Answer 3

• alibi reliance
• where judge thinks necessary / desirable for jury to look for corroboration in other evidence and that evidence draws attention to lies
• where pros show something was a lie and rely on that lie as evidence of guilt.
• where pros havent done above but real danger jury will.

Question 4

when is lucas direction not needed?

Answer 4

where rejection of explanation leaves jury no choice but to convict OR where accused has explained and judge dealt with it fairly in summing up

Question 5

what 2 points should be made in a lucas direction?

Answer 5

• lie must be admitted/proved byrd and
• fact D has lied is not evidence of guilt as they can lie for many reasons

Question 6

D have a right to silence?

Answer 6

yes. Accused is also not compellable at trial so no duty to assist in their own case.

Question 7

what statute specifies circs in which adverse inferences can be drawn?

Answer 7

ss34-38 Criminal Justice and Public Order Act 1994

Question 8

what is the common law rule about inferences?

Answer 8

no inference from silence of accused

Question 9

what is statutory rule?

Answer 9

jury directed regarding inferences that can be drawn.

Question 10

what is an adverse inference under s.34?

Answer 10

inference from silence in interview.

Question 11

when can a s.34 inference be drawn?

Answer 11

Accused when under caution or after charge - when questioned - failed to mention any fact relied on in their defence - and they could have reasonablt been expected to mention when questioned/informed.

Question 12

can adverse infernece under s.34 apply without lawyer?

Answer 12

no. if they are in a place of detention and D has not been allowed to consult a solicitor.

Question 13

what does s.34 allow judge/jury to do?

Answer 13

draw such inferences as appear proper

Question 14

can a conviction be based on silence?

Answer 14

no. no case to answer nor conviction of an offence solely on inference drawn under s.34-38

Question 15

when is a fact relied on?

Answer 15

• accused gives or adduces evidence of it
• counsel acting on instructions puts specific and positive case to pros witnesses

Question 16

identification of facts in direction …

Answer 16

where direction is given, must state the facts it relates to.

Question 17

inference under s.34 when accused gives prepared statement?

Answer 17

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

inconsistencies between the prepared statement and the defence at trial do not necessarily amount to reliance on unmentioned facts

Question 18

when is adverse inference under s.34 appropriate?

Answer 18

where jury can sensibly conclude silence is due to D having no answer that would stand up to questioning.

Question 19

when deciding whether fact reasonably ought to have been mentioned consider:

Answer 19

age, experience, mental capacity, health, sobriety, tiredness and personality

Question 20

does remaining silent in interview on legal advice stop inference?

Answer 20

no. it depends on the view the jury take of the reason advanced by the accuused. genuine reliance on legal advise is not enough to preclude adverse inference

Question 20

when will accused explaining s.34 silence waive privilege?

Answer 20

• giving evidence at voir dire as to reasons for legal advice
• calling evidence of statement made by sol in interview

bare assertion that legal advice was to remain silent not waiver

Question 21

what can happen when accused waives privilege?

Answer 21

can be questioned about disclosures to sol

Question 22

what inferences are allowed under s.34?

Answer 22

“such as appear proper”

• most common = facts invented after interview or
• silence was chosen over lying / self-incrimination

Question 23

what should a s.34 direction cover?

Answer 23

• reminder that D has right not to say anything
• that they are warned of failure
• the facts not mentioned
• instruct as to whether pros case at time was answerable
• instruct only to draw fair and proper adverse conclusion and cannot convict solely on it

Question 24

s.34 should be the subject of …

Answer 24

evidence not speculation (give def enough time to gather explanation ev)

Question 24

what is the 3 stage test for mags to apply with s.34?

Answer 24

• has D relied on fact could have reasonably mentioned
• what is his explanation
• if explanation not reasonable, is the proper inference to be drawn that he is guilty?

Question 25

what does s.36 CJPO deal with?

Answer 25

inference from failure to account for objects, substances, marks, presence at place

Question 26

relationship between lucas and s.34?

Answer 26

where something is said which conceals a fact and constitutes positive lie - both required but not fully just select and adapt direction more appropriate to facts and issues in the case

Question 27

when does s.36 CJPO 1994 apply?

Answer 27

Test:
* where person is arrested and **
* there is a mark/substance on his clothing, footwear, or in possession and **
* constable reasonably believes presence attributable to participation in offence **and **
* constable informs person arrested of belief and requests him to account for it and what conseqquences would be if he failed to do soand
* person fails to do so

inferences can be drawn from judge or jury

Question 28

what does s.37 CJPO deal with?

Answer 28

inferences from person failing to account for presence near crime scene

Question 29

when does s.37 apply?

Answer 29

• person arrested
• found at place
• at or about time of offence for which he was arrested was committed and
• constable reasonably believes presence of the person at that place attributable to partic in offence and
• informs person
• and requests for him to account for presence
• and accused told of effect of failure to do so
• and they fail to do so

inference can be drawn.

Question 30

what inferences can be drawn s.36&s.37?

Answer 30

proper inferences (jury must be satisfied explanation is implausible before inference will be proper)

Question 31

s.36 only concerned with ..

Answer 31

state of suspect at time of arrest

Question 32

s.37 applies only…

Answer 32

when accused found at location of crime at or about the time of the commission of alleged offence.

Question 33

what does s.35 CJPO do?

Answer 33

inferences from failure to testify

Question 34

when does s.35 NOT apply?

Answer 34

accuseds guilt not in issue
accused has mental/physical condition undesirable for them to give evidence

Question 35

where does s.35 apply?

Answer 35

• court is satisfied that accused knows it is their time to give evidence
• and that they can give evidence
• and they choose not to or refuse to answer questions
• jury can draw any proper inferences

Question 36

inferences under s.35 - accused with physical / mental limitations

Answer 36

no inference where condition makes it undesirable for accused to give evidence

general rule it is desirable - voir dire may determine the issue.

Question 36

proper inferences under s.35 include?

Answer 36

deprived the jury of contradiction or explanation of prosecution evidence

Question 37

what is the nature of the inference under s.35?

Answer 37

that accused is “guilty of offence”.

Question 38

can you be solely convicted on s.35 inference?

Answer 38

because s,35 does not happen until close of pros case, they must establish a prima facie case. jury must be told that they must be convinced of the existence of a prima facie case before drawing an adverse inference.

Question 39

what is required for court to decline adverse inference from silence?

Answer 39

require either ‘some evidential basis for doing so or some exceptional factors in the case making that a fair course to take’

Question 40

does strength of pros case affect s.35 inference?

Answer 40

no inference of guilt if pros case is of little evidential value

strong inference where facts clearly call for explanation or are within accused’s knowledge.