Adverse inferences MCQs Flashcards
A woman is arrested in connection with a street robbery. She is arrested close to the location of the robbery and is found in possession of a balaclava. The victim of the robbery cannot identify the person who robbed her (she was wearing a balaclava), and there is no medical or forensic evidence. The woman denies the offence in consultation with her solicitor then she decides to go ‘no comment’ in interview. During the interview she is given a special caution and fails to account for either why she was near the location of the robbery or why she was in possession of a balaclava.
Which of these statements best sets out the woman’s position in terms of adverse inferences?
Adverse inferences can be drawn from her failure to account for her location or possession of the balaclava and the matter will progress to trial.
Adverse inferences can be drawn from her failure to mention something that she then relies on at trial.
Adverse inferences can be drawn from her failure to account for her location or possession of the balaclava. However, it is highly unlikely that the matter will progress to trial if no further evidence comes to light.
Adverse inferences can be drawn from her failure to account for her location or possession of the balaclava, so it is likely she would be found guilty at trial given the overwhelming evidence against her.
Adverse inferences can be drawn from her failure to account for her location or possession of the balaclava. However, it is highly unlikely that the matter will progress to trial if no further evidence comes to light.
Correct. A defendant cannot be convicted on the basis of adverse inferences alone. In this case there would appear to be no evidence against the suspect, so it will not progress to trial.
The other answers, while plausible, are incorrect:
Adverse inferences will not be drawn if the matter does not progress to trial, based on the evidence available at present, it is incorrect to state that the matter will progress to trial.
These adverse inferences would not be sufficient ‘overwhelming evidence’ to convict the defendant. A defendant cannot be convicted on inferences alone (s.38 Criminal Justice and Public Order Act 1994 (‘CJPOA’)).
She has not failed to mention something she will later rely on in court (s.34 CJPOA). Inferences under ss. 36 and 37 trigger the possibility of inferences from the moment the suspect fails to account (unlike s.34).
A man is arrested for burglary. He is found to have a valuable ornament belonging to the victim in his possession. In consultation he informs you that he had been threatened that he would be killed if he did commit the burglary. He is frightened of the gang that threatened him and they have made it clear that he will be harmed if he speaks to the police about them. He is willing to answer questions and admit he stole the ornament from the victim’s house, but he doesn’t want to talk about the gang, or the threats made against him. He wants to know what will happen if he fails to mention the fact that he was forced into it.
Which of these statements best reflects the advice that you should give him about the possibility of adverse inferences if he raises the defence of duress at trial?
The court might draw an inference that he invented the defence between interview and trial.
The court might draw an inference that he failed to account for the ornament being in his possession.
The court will not draw any inference as long as he can explain why he did not mention the issue of duress in interview.
The court will not allow the defendant to raise the defence as he failed to mention it when questioned.
The court might draw an inference that he invented the defence between interview and trial.
A court can draw a ‘proper’ inference as they see approriate and this would appear to be a proper inference in the circumstances.
The other answers, while plausible, are incorrect:
A defendant will be cross examined as to why they did not mention something they later relied on, but no explanation will avoid a proper inference being drawn.
He admits the burglary and possession of the ornament, so there is no suggestion that there would be an inference under s.36.
The defendant would not be prohibited from raising a defence in any circumstances.
Jason is charged with the ABH on Matt, a colleague at work, at a Christmas party. His defence is that he was acting in self-defence because Matt assaulted him first, but he did not raise this defence in his police interview. Jason and Matt were both drunk. Matt’s evidence is very confused and contradictory. Jason does not plan to give evidence in his own defence. At the close of the prosecution case, counsel for Jason makes a submission of no case to answer.
Which ONE of the following statements reflects the CORRECT application by the trial judge of Jason’s silence to the submission of no case to answer?
The judge is entitled to consider Jason’s silence at trial.
The judge can rule that Jason has to testify in the trial.
The judge cannot consider Jason’s silence at all when considering if there is a case to answer
The judge is entitled to consider Jason’s failure to provide an account in interview, but not his silence at trial.
The judge is entitled to consider Jason’s failure to provide an account in interview, but not his silence at trial.
Correct – An adverse inference can be drawn for his failure to put forward his self-defence during the police interview. This is something he could have put forward at the time of his interview but failed to do so and is now relying on that defence at his trial. An adverse inference will be drawn under s.34 CJPOA.
No adverse inference will be drawn under s.35 CJPOA as the stage has not arisen for Jason to give evidence as a submission of no case to answer has been made.
Your client has been arrested for attacking her ex-partner. Neighbours had heard shouting from inside her partner’s house and the police had arrested her on the street just outside the house. She was found to have a metal bar in her bag.
In interview she refused to answer questions, but was later charged with grievous bodily harm contrary to section 20 Offences Against the Person Act 1861.
Which of these statements best sets out the situation regarding the adverse inferences a court may draw?
A court could draw an adverse inference for her failure to account for having a metal bar in her possession but not for her presence as she was outside the house.
A court could draw an adverse inference for her failure to account for her presence outside her partner’s house but not the metal bar as that was in her bag.
A court could draw adverse inferences for her failure to account for her presence outside her partner’s house and for her failure to account for having a metal bar in her possession, if she later relies on that information at trial.
A court could draw adverse inferences for her failure to account for her presence outside her partner’s house and for her failure to account for having a metal bar in her possession.
A court could draw adverse inferences for her failure to account for her presence outside her partner’s house and for her failure to account for having a metal bar in her possession.
A court might draw inferences under s.36 Criminal Justice and Public Order Act 1994 (‘CJPOA’) (object, substance or mark) or s.37 CJPOA (presence on arrest at a particular place). Such inferences arise as soon as she fails to account for her presence or the metal bar.
The other options, while plausible, are incorrect:
Unlike s.34 CJPOA, inferences under s.36 CJPOA or s.37 CJPOA do not require that the defendant fail to mention something they later rely on.
Inferences can be drawn here for both presence and the possession of the metal bar, the metal bar in her bag is still in her possession.
Inferences can be drawn here for both presence and the possession of the metal bar, being outside the property would still count as being present.
You represent Gerald who is charged with fraud. His trial is taking place at the Crown Court. You have given Gerald advice about inferences from his failure to testify in his own defence during trial. At the close of the prosecution case the judge asks you in the presence of the jury whether Gerald is going to give evidence. You answer no.
Will the judge proceed to ask you about your advice to Gerald concerning inferences from his failure to testify in his own defence during trial?
The judge will ask whether you have advised Gerald that the time has come at which he may give evidence and, if he chooses not to do so the jury may draw such inferences as appear proper from his failure to do so but in the absence of the jury.
The judge will not ask whether you have advised Gerald about whether to give evidence or not because this is private advice between a lawyer and a defendant which is protected by legal advice privilege.
The judge will ask whether you have advised Gerald that the time has come for him to give evidence and, if he refuses to do so the jury may draw such inferences as appear proper from his failure to do so.
The judge will ask whether you have advised Gerald that the time has come at which he may give evidence and, if he chooses not to do so the jury may draw such inferences as appear proper from his failure to do so.
The judge will ask whether you have advised Gerald that the time has come at which he may give evidence and, if he chooses not to do so the jury may draw such inferences as appear proper from his failure to do so.
Correct. At the conclusion of the evidence for the Prosecution, section 35(2) of the Criminal Justice and Public Order Act 1994 requires the court to satisfy itself that the defendant is aware that the stage has been reached at which evidence can be given by the defendant and his failure to give evidence, or if he does so his failure to answer questions, without good reason, may lead to inferences being drawn against him. This will be done in the presence of the jury.
The other options were incorrect because:
· ‘if he refuses to’ give evidence implied that the defendant must give evidence and has no choice in the matter. The defendant has a right to remain silent, albeit that adverse inferences may be drawn.
· One option suggested the judge would not ask you about this particular piece of advice to your client when there is an obligation to do so under section 35(2) Criminal Justice and Public Order Act 1994.
· One option suggested the judge would ask you in the absence of the jury when s.35(2) Criminal Justice and Public Order Act 1994 requires the judge to ask in the presence of the jury.
A man has been charged with robbery. He was not represented at the police station because he declined legal advice. The man agreed to take part in a video identification procedure and was positively identified by one of the witnesses to the crime.
The man has a visible scar under his right eye which was mentioned by an eyewitness in their initial witness statement. No attempt was made by the video identification inspector to conceal the scar on the man’s face when his image was placed in the compilation of images for the video identification procedure.
A solicitor has now been instructed to represent the man at his forthcoming trial in the Crown Court, where the man will plead not guilty. As part of the solicitor’s trial preparation, she has reviewed the images used in the video identification procedure and has noted that only two of the other eight images shown in the video identification procedure show similar looking males with a visible scar under their right eye.
The solicitor establishes that as a consequence there has been a provable breach of Code D of PACE 1984.
Which of the following statements best states whether evidence of the video identification procedure will be admitted in evidence at the man’s trial?
A. The breach of Code D of PACE may lead the court to conclude that the evidence should be excluded if its admission would be an abuse of process.
B. The breach of Code D of PACE will compel the court to exclude the evidence because of its prejudicial effect.
C. The breach of Code D of PACE may lead the court to conclude that the evidence should be excluded if its admission would have an adverse effect on the fairness of the proceedings.
D. The breach of Code D of PACE will not compel the court to exclude the evidence because its admission would not have an adverse effect on the fairness of the proceedings.
E. The breach of Code D of PACE will compel the court to conclude that the evidence should be excluded and order that the breach must be cured by the police conducting a further video identification procedure in compliance with the Code.
C - The breach of Code D of PACE may lead the court to conclude that the evidence should be excluded if its admission would have an adverse effect on the fairness of the proceedings.
You are defending in a burglary trial in which the Prosecution have a strong case. When interviewed, your client largely made no comment to the questions asked, but he did mention that on the date of the alleged burglary he was out of the country. At trial, he gives evidence and says that he was in the country, but that he was worried the police wouldn’t believe him so he lied in interview. At the close of the evidence, the Prosecution ask for a s.34 adverse inference direction on the basis your client failed to mention he was in the country.
On what basis should you oppose the Prosecution request?
On the basis that, because the Prosecution have a strong case, giving the direction would have an adverse effect on the fairness of proceedings
On the basis that the client did not fail to mention a fact, rather he has advanced a differing account which is a matter for the jury.
On the basis that the direction would be more prejudicial than probative
On the basis that the fact in question makes little difference to the overall case
On the basis that the client did not fail to mention a fact, rather he has advanced a differing account which is a matter for the jury.
Correct. A s.34 Criminal Justice and Public Order Act 1994 adverse inference direction is not appropriate in a situation where a Defendant changes their account, rather it applies to a situation where a Defendant fails to mention a fact relied upon in his defence (s.34 (1)(a)).
The other options are incorrect.
Option: On the basis that, because the Prosecution have a strong case, giving the direction would have an adverse effect on the fairness of proceedings. Feedback: This is the s.78 PACE 1984 test appropriate to excluding evidence, not giving the jury directions.
Option: On the basis that the fact in question makes little difference to the overall case. Feedback: The location of a suspect at the time of an offence is an important matter.
Option: On the basis that the direction would be more prejudicial than probative. Feedback: This is the common law exclusion power concerned with evidence, it is not the appropriate test for whether or not to give a s.34 direction.
Dylan is arrested on suspicion of robbery. The allegation is that Dylan pulled out a knife on the complainant and threatened to stab him if he didn’t hand over his wallet and mobile phone. When arrested Dylan was found in possession of the stolen mobile phone. Dylan was interviewed under caution and offered access to legal advice but had declined. During the police interview Dylan was asked questions regarding his involvement and knowledge of the robbery but was not asked to account for having possession of the stolen mobile phone. Dylan answered ‘no comment’ to all questions put to him.
At the trial, Dylan gives evidence to say that he can’t have committed the robbery as he was with his mum at home at the time the offence is alleged to have taken place and that he had the phone as his friend had sold it to him the previous day.
Which one of the following best reflects whether the jury may draw an adverse inference under the Criminal Justice and Public Order Act 1994?
The jury may not draw an adverse inference under s.34 or s.36 as Dylan did not have a legal adviser present during his police interview.
The jury may draw an adverse inference under s.34 as Dylan failed to provide his alibi during his police interview but no adverse inference can be drawn under s.36 for his failure to account for the possession of the mobile phone.
The jury may draw an adverse inference under s.34 as Dylan failed to provide his alibi during his police interview and an adverse inference under s.36 for his failure to account for the possession of the mobile phone.
The jury may draw an adverse inference under s.34 as Dylan failed to provide his alibi during his police interview.
The jury may draw an adverse inference under s.34 as Dylan failed to provide his alibi during his police interview but no adverse inference can be drawn under s.36 for his failure to account for the possession of the mobile phone.
Correct. This option deals with s.34 and s.36 correctly.
The other options were incorrect because of the following:
· An adverse inference can’t be drawn under s.36 as Dylan was not asked to account for his possession of the mobile phone;
· The absence of a legal adviser, in circumstances were Dylan was offered access to legal advice and declined, is not the reason that would prevent an adverse inference being drawn; and
· One option didn’t deal with Dylan’s possession of the mobile phone at all.
You represent Mandy who is charged with murder. The allegation is that she, and another, were involved in a fight with Susan during an argument after a night out at the pub. A witness was sitting at the window of a restaurant, across the road from the pub. The witness said she saw someone who matched Mandy’s description, push past Susan outside the pub, then a scuffle then ensued between Mandy and Susan. The witness said that Mandy and another woman then ganged up on Susan and started punching and kicking her to the head after Susan fell to the ground. The witnesses was too scared to intervene, but eventually when Susan lay lifeless on the floor they ran off. The witness ran to Susan and called the police.
Later that evening, Police found Mandy lurking a few streets away from the pub, with blood on her hand and slouched up against a lamppost. She was arrested and taken to the police station. Mandy was cautioned but not given a special warning. She claimed that she was innocent and not involved. She said that she had blood on her hands because she had fallen a few moments earlier as she was quite drunk, having been out somewhere else that evening.
The Judge asks Counsel for submissions on the appropriate directions to be given in this case when summing up in relation to the account of Mandy and the identification.
Which of the following is the most appropriate way for you to respond?
The Judge should not give a Turnbull direction as the witness could clearly see what happened with little obstruction and should not give a direction in respect of an adverse inference under s.36 Criminal Justice and Public Order Act 1994.
The Judge should give a Turnbull direction and a direction in respect of an adverse inference under s.34 Criminal Justice and Public Order Act 1994.
The Judge should give a Turnbull direction but should not give a direction in respect of an adverse inference under s.36 Criminal Justice and Public Order Act 1994.
The Judge should give a Turnbull direction along with a Lucas direction, because the defendant appears to be lying about her not being involved.
The Judge should give a Turnbull direction but should not give a direction in respect of an adverse inference under s.36 Criminal Justice and Public Order Act 1994.
Correct. A Turnbull direction is appropriate because the Crown’s case relies on the correctness of a disputed identification. Whilst a special warning was not given in this case, Mandy gave an account for the blood on her hands during police interview and therefore directing the jury that they may draw an adverse inference under s.36 Criminal Justice and Public Order Act 1994 is not appropriate.
The other options were incorrect in part:
· A Lucas direction is not appropriate here because it is a matter for the jury to determine whether they believe Mandy or not. A proven lie has not been established on these facts.
· Section 34 Criminal Justice and Public Order Act 1994 applies to adverse inferences from silence in police interview, and here Mandy answered questions in interview.
You represent Maxine who is facing trial for an offence of attempted theft of a motor vehicle. The Crown’s case is that a witness saw someone who resembles Maxine at approximately 1am trying to force open the door of a car on the street. The person appeared to have an object in her hand which she was using to prise open the door. On being disturbed, the person walked away. The witness called the police who arrived within a few minutes and noted that there was damage to the door consistent with a metal object being used in an attempt to prise it open. The officer carried out a search of the area, looking for someone who fitted the description provided by the witness.
The officer came across Maxine a short distance away. Upon searching her he found a screwdriver in her pocket. She was arrested and interviewed at the police station shortly afterwards. During the interview she refused to provide an explanation for her possession of the screwdriver.
The prosecutor tells you that he intends to submit that an adverse inference should be drawn under s.36 Criminal Justice and Public Order Act 1994 due to her failure to provide an explanation for her possession of the screwdriver.
Can an adverse inference be drawn under s.36 Criminal Justice and Public Order Act 1994 in these circumstances?
An inference may be drawn because of Maxine’s failure to account for possession of the item, whether or not she was under arrest at the time the request was made.
No inference may be drawn as long as Maxine gives an explanation for possession of the item in evidence at trial
No inference may be drawn unless Maxine gives evidence at trial and provides an explanation that she could reasonably have been expected to provide at the time
No inference may be drawn unless, prior to requesting an explanation, a constable had informed Maxine in ordinary language of the consequences of failing to provide an explanation
No inference may be drawn unless, prior to requesting an explanation, a constable had informed Maxine in ordinary language of the consequences of failing to provide an explanation
Correct. One of the essential criteria that must be satisfied before an adverse inference can be drawn under s.36 is that the ‘special caution’ is given. A constable must explain to Maxine in ordinary language the consequences of failing to provide an explanation (i.e. the court may draw such inferences that appear proper).
The other options were incorrect because:
· One of the criteria that must be satisfied is for a s.36 inference is that Maxine was under arrest at the time of the request (i.e. not a volunteer).
· A s.36 inference can be applied irrespective of whether Maxine gives evidence.
· Unlike s.34 inferences, there is no test of whether or not it was reasonable to provide the information for a s.36 inference.
Which of the following best explains the circumstances which must be satisfied before an inference can be drawn at trial under sections 36 and 37 Criminal Justice and Public Order Act 1994?
Where a person is arrested and the person fails to account for any object, substance or mark in his possession or in the place where he is arrested and he fails to account for those items then an inference may be drawn.
No inference may be drawn unless the accused was under arrest, the officer held a reasonable belief which was communicated to the accused and the effect of a failure or refusal to comply was explained to the accused in ordinary language.
No inference may be drawn unless the officer making the request of the person reasonably believes the object, substance or mark, or the accused’s presence may be attributable to the accused’s participation in a crime
Where a person who was arrested was found at a place at or at about the time the offence for which he was arrested is alleged to have been committed and the person fails to account for their presence then an inference may be drawn
No inference may be drawn unless the accused was under arrest, the officer held a reasonable belief which was communicated to the accused and the effect of a failure or refusal to comply was explained to the accused in ordinary language.
Correct. This answer sets out clearly all four pre-conditions necessary before an inference can be drawn.
The other options were incorrect.
Option: Where a person is arrested and the person fails to account for any object, substance or mark in his possession or in the place where he is arrested and he fails to account for those items then an inference may be drawn. Feedback: This is a generalised answer and does not fully set out the pre-conditions required before an inference can be drawn.
Option: Where a person who was arrested was found at a place at or at about the time the offence for which he was arrested is alleged to have been committed and the person fails to account for their presence then an inference may be drawn. Feedback: While this answer is correct, it could be more specific, as it only refers to the place of arrest rather than objects, substances and marks.
Option: No inference may be drawn unless the officer making the request of the person reasonably believes the object, substance or mark, or the accused’s presence may be attributable to the accused’s participation in a crime. Feedback: While this answer is correct, the necessity for a reasonable belief on behalf of an officer is just one of the pre-conditions required before an inference may be drawn.
