Adverse inferences

Question 1

when can AIs be drawn?

Answer 1

P must adduce other evidence of guilt before it can ask court to draw AIs.

D cannot be convicted on AI alone.

Question 2

when can AIs not be drawn?

Answer 2

AIs cannot be drawn if D was denied access to legal advice.

NB: where D was denied legal advice, not where D refused legal advice

Question 3

on what basis will an application to draw AIs be granted?

Answer 3

Application will only be granted where the court is satisfied:
o There is a case to answer;
o There is evidence other than silence; &
o The only sensible explanation is D had no answer/wouldn’t stand up to scrutiny

Question 4

where an AI can be drawn, what are the court likely to infer?

Answer 4

D had no explanation or it would not stand up to scrutiny

Question 5

what is the key difference between inferences under s34 and the others?

Answer 5

s34 only applies where D is relying on a fact as part of their defence they should have mentioned, the other AIs apply irrespective of D’s defence

Question 6

what is the key piece of legislation in this area?

Answer 6

Criminal Justice and Public Order Act 1994

Question 7

re: s34 CJPOA 1994

when can an AI be drawn under s34?

Answer 7

AI drawn where:
o D fails to mention a fact they could have reasonably been expected to mention during interview under caution or at charge; and
o They are relying on the fact

Question 8

re: s34 CJPOA 1994

what is the position if D is silent in the 1st interview but not others?

Answer 8

AIs can still be drawn

Question 9

re: s34 CJPOA 1994

what actions result in P being unable to draw inferences under s34? What is the exception?

Answer 9

Action 1:
o if D gave a written statement inc. relied upon facts, AIs cannot be drawn
o exception: if statement was given later, cannot draw inferences of fabrication but can that D was not confident in defence

Action 2:
o if was D advised to silent interview the judge will direct jury AIs should not be drawn if D genuinely & reasonably relied on advice

Question 10

re: s36 CJPOA 1994

when can AIs be drawn under s36?

Answer 10

AI drawn where D questioned in an interview under special caution about an object, substance or mark:
* on their person
* in/on their clothing
* in their possession; or
* in any place in which they are at at the time of arrest

and they fail to account for it

Question 11

re: s36 CJPOA 1994

what are the conditions for a special caution?

Answer 11

D must be told:
o The offence under investigation
o What S is being asked to account for + involvement suspected
o The court can draw inferences for failure
o Interview recording may be used in evidence

Question 12

briefly, what is the inference related to s34?

Answer 12

silence

Question 13

briefly, what is the inference related to s36?

Answer 13

object, mark or substance

Question 14

briefly, what is the inference related to s37?

Answer 14

place

Question 15

briefly, what is the inference related to s35?

Answer 15

silence at trial

Question 16

re: s37 CJPOA 1994

when can AIs be drawn under s37?

Answer 16

AI can be drawn where D questioned in an interview under special caution about their location at time of arrest and they fail to account

Question 17

re: s35 CJPOA 1994

when can AIs be drawn under s35?

Answer 17

AI can be drawn where D refuses to give evidence or answer a question put to them without reason

Question 18

re: s35 CJPOA 1994

when can AIs not be drawn under s35? Explain this.

Answer 18

AI not to be drawn if D suffering from physical/mental condition making it undesirable (i.e. they cannot properly participate) for them to give evidence.

Strict application. Below average IQ = insufficient.