Inferences from the defendant’s silence and other conduct

Question 1

An accused person in a criminal trial has a ‘right to silence’. These concepts are not specifically mentioned in the rights guaranteed by the ECHR, Article 6, but it has been held that they constitute ‘generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6’ (Murray v UK (1996) 22 EHRR 29; Saunders v UK (1996).

True or false?

Answer 1

True

Question 2

The conduct of the accused when an accusation is made against her may form the basis of an inference that he accepts the accusation. True or false?

Answer 2

True

Question 3

According to the Criminal Justice and Public Order Act 1994, s. 34, the Court must infer a negative inference against a defendant who has not mentioned a fact that they later relied on as part of their defence when the matter was being investigated. True or false?

Answer 3

False. The Court in determining whether there is a case to answer and the jury, in deciding whether the accused is guilty of the offence charged, “may draw such inferences from the failure as appear proper”.

Question 4

Where silence may be attributable to a variety of factors it is for the jury to decide what inference to draw. True or false?

Answer 4

True

Question 5

In Murray, Court considered that even the lawful exercise of powers by police officers to delay access to legal advice could, where the accused was at risk of adverse inferences under the statutory scheme, be sufficient to deprive the accused of a fair procedure under Article 6. Why?

Answer 5

The accused was faced with a ‘fundamental dilemma’ at the outset of the investigation, in that her silence might lead to adverse inferences being drawn against her, while breaking her silence might prejudice her defence.

Question 6

What answer does the The Youth Justice and Criminal Evidence Act 1999 establish to answer the dilemma in Murray v UK - in which an accused may risk negative inferences whilst waiting for her legal advice?

Answer 6

By postponing the prospect that inferences will be drawn until the accused has had the opportunity of consulting with a legal adviser

Question 7

Can an inference under s34 of the Criminal Justice and Public Order Act 1994 alone substantiate a conviction according to (Abdullah [1999] 3 Arch News 3)?

Answer 7

No.

Question 8

According to Murray v UK: “it would be incompatible with the accused’s rights to base a conviction ‘solely or _____ on the accused’s silence or on a refusal to answer questions or to give evidence himself”

What is _________

Answer 8

“Mainly”

Question 9

A negative inference under Section 34 of the CJPO 1994 XXXXX apply where the accused makes no attempt to put forward at trial some previously undisclosed fact (e.g., where he simply contends that the prosecution has failed to prove its case).

Is XXXX “does”, or “does not”?_

Answer 9

Does not.

Question 10

Where the accused at the relevant time gives a prepared statement in which certain facts are set forth, it cannot subsequently be said that he has failed to mention those facts, even if she gives a “no comment” interview. True or false?

Answer 10

True

Question 11

If the prosecution fail to establish that the accused has failed to mention a fact in his defence, (after having given a no comment interview) how should the jury should be directed as to Section 34 of the CJPO 1994 ?

Answer 11

If the prosecution fail to establish that the accused has failed to mention a fact, the jury should be directed to draw no inference

Question 12

Inferences about silence before a suspect is charged under the CJPO 1994, s. 34(1)(a), may not be drawn. However, what is the exception?

Answer 12

Inferences may be drawn if there was no mention of a fact later relied upon when a defendant was being questioned under caution by a constable.

Question 13

What is the standard worded caution as set out in PACE Code C Paragraph 10.5?

Answer 13

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”

Question 14

Adverse inferences may be drawn from a fact subsequently relied on in defence only where the fact is one which, in the circumstances existing at the time, the accused could reasonably have been expected to mention (s. 34(1)). If the accused gives evidence, should his reason for failing to disclose should explored?

Answer 14

Yes, the reason for an accused not giving evidence when questioned will determine whether a negative inference may be drawn under s34

Question 15

In Condron it was held that the giving of legal advice to remain silent did not of itself preclude the drawing of inferences: all depends on the view the jury takes of the reason advanced by the accused for remaining silent if they knew a fact which would have assisted them. True or false?

Answer 15

True

Question 16

If a person is arrested with something suspicious and cannot provide an explanation for it when asked by the police- what may the court (when deciding if there is a case to answer) or the jury (when deciding on guilt) draw as an inference?

(s36 Criminal Justice and Public Order Act 1994)

Answer 16

The Court or Jury may draw such inferences from the failure or refusal as appear proper.

Question 17

If a person is arrested at a place at or about a time that an offence took place and cannot provide an explanation for it when asked by the police- what may the court (when deciding if there is a case to answer) or the jury (when deciding on guilt) draw as an inference?

(s37 Criminal Justice and Public Order Act 1994)

Answer 17

The Court or Jury may draw such inferences from the failure or refusal as appear proper.

Question 18

What are the four conditions for an inference under s376 and 37 to be drawn?

Answer 18

1. The accused is arrested;
2. A constable (not necessarily the arresting officer) reasonably believes that the object, substance or mark, or the presence of the accused at the relevant place, may be attributable to the accused’s participation in a crime
3. The constable informs the accused of his belief and requests an explanation of the matter in question;
4. The constable tells the suspect in ordinary language the effect of a failure or refusal to comply with the request.

Question 19

Can an accused person be compelled to give evidence at their trial under s35 Criminal Justice and Public Order Act 1994?

Answer 19

No

Question 20

If an accused person chooses not to give evidence, what should their counsel do? (see F19.43 Blackstone)

Answer 20

It has long been the recommended practice, and is of great importance in light of s. 35, for counsel to record the decision of the accused not to give evidence, and to sign it and indicate that it was made voluntarily

Question 21

What inferences may be drawn under s35 Criminal Justice and Public Order Act 1994 for a refusal by a defendant to give evidence at trial?

Answer 21

The court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.