4.2 Inferences 2 Flashcards
Which provision covers the accused’s failure or refusal to account for objects, substances or marks?
Section 36 Criminal Justice and Public Order Act 1994
When can an inference be drawn under Section 36 CJPO?
An adverse inference can be drawn under s.36(1) CJPO when the accused -
1.
Has been arrested (as opposed to merely cautioned, as per s.34)
2.
Has an object/substance/mark sufficiently proximate to their person (in reality, this means on the accused) [CHECK BLACKSTONES F20 FOR DEFINITION]
3.
The object/substance/mark was proximate to the accused at the time of their arrest
4.
A constable reasonably believes that the object, substance or mark may be attributable to the accused’s participation in a specified crime
5.
The constable informs the accused of this belief and requests an explanation
6.
The constable informs the accused, in ordinary language, of the consequences of a failure or refusal to provide an explanation (also called the ‘special warning’).
7.
The accused gave no explanation to the constable.
Which provision covers silence where the accused is arrested at or near the scene of a crime?
Section 37 CJPO
When can an inference be drawn in relation to silence when arrested at the scene of a crime?
Section 37(1) CPO
(a)
D was arrested at a place at or about the time the offence for which he was arrested is alleged to have been committed;
(b)
the constable reasonably believes that the accused’s presence at the scene of a crime may be attributable to the accused’s participation in a specified crime
(c)
the constable informs the person that he so believes, and requests him to account for that presence [the special warning]; and
(d)
the person fails or refuses to do so
Which provision deals with the situation where a defendant either refuses to give evidence at their trial or refuses to answer certain questions?
Section 35 CJPO
What conditions must be satisfied for the tribunal of fact to draw adverse inferences from D’s silence at trial?
Section 35(2) CJPO
The jury must -
1.
Be told at the conclusion of the prosecution’s case that the time has now arrived when the defendant may give evidence
2.
Be warned (by either judge or defence counsel and in front of the jury) that the jury may draw adverse inferences from the defendant’s failure to testify. [always get this written down and signed.]
3.
If the defendant chooses not to give evidence then the trial proceeds.
What inference can the tribunal of fact draw from D’s silence in court?
Section 35(3) CJPO That "the accused is guilty of the offence charged".
When can’t an adverse inference be drawn from silence at trial?
Sectin 35(1) CJPO
If -
(a)
the accused’s guilt is not in issue [eg a Newton Hearing]; or
(b)
it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence
What if the jury is sure that the defendant lied?
A Lucas Direction warns the jury against the ‘forbidden reasoning’ that lies by their very nature demonstrate guilt.
[eg D could have been covering an extra marital affair.]
When is the judge required to give a Lucas Direction?
a)
When the defence is alibi;
b)
Where necessary to suggest that the jury should look for corroboration of one piece of evidence from other evidence in the case, and amongst that evidence draws attention to the lies allegedly told by the defendant;
c)
Where the prosecution seeks to show that something said by the defendant was a lie, and rely on that lie as evidence of guilt in relation to the relevant charge; or
d)
Where the judge envisages that the jury may find the lie as evidence of guilt.
Following a Lucas Direction, what must the jury be sure of in order to rely on a lie by D in support of the prosecution’s case?
- D was lying
- The lie was deliberate
- The lie relates to a material issue
- There is no innocent explanation for the lie
Do not convict solely on the basis of a lie and remember that lies do not mean guilt (the “forbidden reasoning”).
