4.2 Inferences 1

Question 1

Which statutory provisions have eroded the defendant’s previously absolute right to silence?

Answer 1

Section 34-37 Criminal Justice and Public Order Act 1994

Question 2

Which provision deals with silence when questioned or charged?

Answer 2

Section 34 Criminal Justice and Public Order Act 1994

Question 3

Which provision deals with silence during trial?

Answer 3

Section 35 Criminal Justice and Public Order Act 1994

Question 4

What may a tribunal of fact do if Section 34 CJPO applies?

Answer 4

The tribunal of fact “may draw such inferences from the failure as appear proper”.

Question 5

What is an “inference”?

Answer 5

A common sense conclusion.

Question 6

Under what circumstances can the tribunal of fact draw an adverse inference under Section 34 CJPO?

Answer 6

Section 34(1) CJPO
Where D
(a) fails to mention a fact when questioned under caution or
(b) fails to mention it when charged, but
could reasonably have been expected to have mentioned that fact

[…and then adduces the fact at trial.]

Question 7

What is the principal objective of allowing adverse inferences to be drawn from D’s silence?

Answer 7

To achieve early disclosure of D’s account.

Question 8

What is the effect of failing to caution D if D relies at trial on a fact not mentioned in questioning?

Answer 8

Section 34(1)(a) CJPO
No adverse inference can be drawn if no caution was given.

Question 9

Why do police officers continue to ask D questions when it is clear D is answering “no comment” to everything?

Answer 9

Because adverse inferences can only be drawn under s.34 about silence in response to questions which have been put to D.

Question 10

What if D refused to leave their cell for police interview?

Answer 10

R v Johnson [2005] EWCA Crim 971
No adverse inferences can be drawn in relation to specific questions.

However, the jury may draw its own conclusions in assessing all the facts of the case.

Question 11

If D wishes to mention something to the police but does not want to answer questions which may incriminate her, what can she do?

Answer 11

R v Knight [2003] EWCA Crim 1977
Submit a pre-prepared written statement, then answer “no comment” to all police questions put verbally. The jury cannot then draw adverse inferences with regard to what is in the statement because D has mentioned it.

Question 12

What might the tribunal of fact take into account in deciding whether it was “reasonable” for D not to mention a fact when questioned or cautioned?

Answer 12

Argent [1997] 2 Cr App R 27

Many factors including illness, tiredness, sobriety, age, experience, legal advice.

Question 13

Which section of Blackstones deals with inferences from silence?

Answer 13

F20

Question 14

Can the tribunal of fact draw adverse inferences from any failure to mention facts later relied on in court?

Answer 14

Argent [1997] 2 Cr App R 27

Only where the defence advances a fact which is suspicious by reason of not being advanced earlier.

Question 15

What kinds of defence is s.34 CJPO really directed at?

Answer 15

R v Brizzalari [2004] EWCA Crim 310
“No comment” interviews and “ambush” defences. Otherwise the prosecution should generally not seek a direction to the jury.

Question 16

Which human right is engaged by drawing adverse inferences from silence?

Answer 16

Art 6 ECHR - fair trial. So judges must be careful when giving directions to the jury.

Question 17

When is an adverse inference not possible, even though D relies on something she failed to tell the police something under caution?

Answer 17

Section 34(2A) CJPO
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.

Question 18

What is the overarching safeguard against unfair convictions on the basis of silence under ss. 34, 35, 36 or 37?

Answer 18

Section 38(3) CJPO
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 [silence].

Question 19

Can a conviction be based mainly on a failure to mention?

Answer 19

Murray v UK (1996) 22 EHRR 29
Convictions cannot be based solely or mainly on silence.

See also the Crown Court Compendium.

[FOR SOME REASON COWAN IS RELEVANT]

Question 20

Can adverse inferences be drawn where there D makes a bare denial in court?

Answer 20

R v Smith [2011] EWCA Crim 1098

No - because D is not relying on any particular fact that could have been mentioned at interview.

Question 21

Why are D’s reasons for not mentioning something earlier important?

Answer 21

Webber [2004] UKHL 1

D’s reasons are important because if there is a good reason the jury cannot draw adverse inferences from D’s silence.

Question 22

Can the tribunal of fact draw an adverse inference where D was silent on the advice of her solicitor?

Answer 22

R v Hoare [2004] EWCA Crim 784
It depends on whether D remained silent “not because of that legal advice but because he had no or no satisfactory explanation to give”.

[ie was D just hiding behind legal advice or did she have real defence?]

Question 23

What is the downside to asking the tribunal of fact not to draw adverse inferences because you stayed silent on legal advice?

Answer 23

You have to waive privilege.

Question 24

What are the most common inferences to draw from silence?

Answer 24

a)
the most common inference, that the fact relied on has been invented after the interview;
b)
the accused had the fact in mind at the time of interview, but was unwilling to expose their account to scrutiny;
c)
that the accused was faced with a choice between silence and lying/incriminating themselves further with the truth.

Question 25

What must a s.34 direction to jury on drawing adverse inferences from silence contain?

Answer 25

Crown Court Compendium Ch 17-1 and R v Pektar [2003] EWCA Crim 2668
(1)
a reminder that the accused was cautioned;
(2)
(a) identify - in consultation with the advocates - the facts about which an inference my be drawn;
(b) any reasons given for the failure to mention those facts; and
(c) the conclusions the prosecution wants to draw;
(3)
consider whether the prosecution case at the time of the interview clearly called for an answer, and if it did, whether there was no sensible explanation other than that D 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 not to convict the accused wholly or mainly on the strength of it.

Question 26

What is the test for a Magistrates Court considering whether to draw an adverse inference under s.34?

Answer 26

T v DPP [2007] EWHC 1793 (Admin)

(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 inference to be drawn that he is guilty?

Question 27

What inference may the tribunal of fact draw if Section 35 applies?

Answer 27

guilt