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Flashcards in SG13 Deck (21):

Police Investigations, Prosecution and Defence

Investigative Stage
Police questions to suspect before caution (severely limited to avoid ‘verbals’)
Police questions to suspect under caution (limited to avoid ‘verbals’)
Police interview of suspect under caution, at police station after offer of legal advice
Charge under caution
Investigation ends and case passed to CPS
Prosecution Stage
Prosecution disclosure: a continuing duty
Defence disclosure: a limited but continuing duty
Trial Stage
Prosecution presents its case
Submission of No Case to Answer (optional)
Defence presents its case – defendant has choice whether or not to give evidence or call witnesses of fact
Prosecution closing speech to jury
Defence closing speech to the jury
Judge’s summing up and directions to jury
Jury deliberation & verdict


Lies told by accused on their own do not make positive case of any crime. May indicate a consciousness of guilt and may be relied upon by P as evidence supportive of guilt.
Whenever accuseds lie is relied upon by P or may be used by the jury to support evidence of guilt (as opposed to his credibility) 3 fold Lucas direction should be given to the jury:

1. lie was deliberate was related to a material issue
3. it is established as a lie by independent evidence and
4. motivated by realisation of guilt and fear or truth, i.e. no innocent motive for the lie. J should consider that people sometimes lie to bolster a just cause or out of shame or a wish to conceal disgraceful behaviour.


R v Burge [1996] 1 Cr App R 163

Court of Appeal in Burge stated that a Lucas direction should usually be given where:
Defence relies on alibi; i.e. false alibis are sometimes invented to bolster a genuine defence
Where judge tells the jury to look for corroboration and refers them to other evidence which includes lies
Where the prosecution seek to use a lie on a distinct issue, said in or out of court, as evidence of guilt i.e. to use it in effect as an implied admission of guilt; or
Where, although the prosecution do not seek to use the lie to prove guilt, the judge takes the view that there is a reasonable risk of the jury doing so.


Failure to reveal facts afterwards relied upon in court s34 CPOA 1994

I) Accused questioned under caution failed to mention any fact relied on in his defence in those proceedings.
ii) on being charged or officially informed he might be prosecuted accused failed to mention any such fact or
iii) after being charged on being questioned under s22 Counter Terrorism Act 2008 failed to mention any such fact being a fact which in the circs existing at that time the accused could reasonably have been expected to mention when so questioned charged or informed

May be used as evidence establishing a Case to Answer and/or Guilt


Key Q 3 and 4

Place: s37 CJPOA requires special caution

Object substance or mark: s36 CJPOA 1994 requires special caution.

However inference may be drawn under s34 CJPOA 1994

Both may be used as evidence establishing a Case to answer and or Guilt


Did D genuinely and reasonably rely on the advice of sol in making decision to remain silent Beckels v UK 2005.

Q6: See Ds right to give or not to give evidence.

Before/after closing speeches

Judges summing up

Have you advised you client that the stage has now been reached at which he may give evidence and, if he chooses not to do so or , having been sworn without good cause refuses to answer any question the jury may draw such inferences as appear proper from his failure to do so?

Before: desirable before closing speeches for TJ to discuss with counsel whether a direction under s35 CJPOA is appropriate and if so, in what terms it should be given - in absence of jury.

Judges summing up: will give direction under s35 CJPOA guiding jury on how Ds silence at trial could count against him.


Q7: Ds whose physical or mental condition make it undesirable for them to give evidence are excluded from the operation of s35, likewise those whose guilt is not in issue.

Q6 Re Defence statement

CPIA 1197 s5-6A. Section 6A sets out required content:
i. nature of defence inculding any particulars of the defence to be relied on
ii. matters of fact taken in issue with the prosecution with reasons why.
iii. particulars of matters of fact accused intends to rely on in his defence.
iv. point sof law he wishes to take with any authorities he seeks to rely on and
v. providing details of any alibi ws including names and addresses and dates of birth (where known).


Alibi Ws

Other D Ws

AW: wher einformation not known D must give any info that might assist to establish identity or to find such a W

other DW: D needs to notify the court and prosecutor separately from the D statement of any W they intend to call at trial other than D and any alibi witness already so notified. CPIA 1996 s6C.

Should provide details so that W can be identified and traced and possibly interviewed by police s34 CJA 2003 inserting s6C to CPIA 1996


Key Q 9: SNCA

Wording of CPIA 1996 s11 (5) (b) appears to preclude use of an inference from defective disclosure to bolster prosecution case against a submission of no case to answer "whether the accused is guilty of the offence concerned"

Comments to a fact finder:

P and CoDS may comment on failures but in some circs require leave from the Ct. Ct may comment on the failures.

Thus ct and jury may draw such inferences as appear proper in deciding guilt but cannot solely convict D on inference drawn from the failures.


D at trial runs a defence different to his defence statement:

D9.45 for circs in which comments and drawing inferences may be made.
d9.46 and F19.26 where judge allows jury to draw an inference in those circumstances, it is usually unhelpful at the same time to give a Lucas Direction.


Joe’s Admitted Lie to the Police

Joe admitted to police that he had lied to them about being ill in bed
Joe then told them that he was on a fishing trip (but not mention Hugh)
Crown will allege that the second explanation is also a lie, i.e. that in fact Joe was with Imran and committed the theft
Jury therefore have to consider two lies
Lie 1: Joe was sick in bed
That lie was a deliberate one made by Joe
It was related to a material issue, i.e. his presence
It is established as a lie by independent evidence, i.e. by Joe’s own admission;
But it was not motivated by a realisation of guilt and fear of the truth: i.e. there was an innocent motive for the lie, i.e. to avoid getting into trouble at work
Judge should give a Lucas Direction to the jury on this lie


Joe’s Alleged Lie to the Police

Lie 2: Fishing Trip
Issues is whether Joe was on a fishing trip (with Hugh) or with Imran committing the theft, this is a matter for the jury, it has choices:
Accept Joe was fishing that day and that Hugh is giving a truthful account in support of his one at trial
Accept Joe’s account but find that Hugh was lying about being with him, i.e. that Joe has put forward a false alibi witness to bolster his genuine defence
Wholly reject Joe and Hugh’s accounts and accept the Crown’s case that Joe was with Imran committing the theft at the material time.
Lucas Direction should be given on the fishing trip alibi as an alleged lie and in particular be warned that false alibi witnesses (i.e. Hugh) are sometimes advanced to bolster genuine defences
Before accepting that Joe was present with Imran at the theft, the jury will have to be sure that Joe’s evidence and Hugh’s evidence are false


Joe’s Initial Failure to Mention a Witness in Support of His Alibi

Witness in support of alibi (Hugh) was mentioned in Defence Statement*, and
Hugh has given evidence in support of Joe’s alibi at trial, BUT
Hugh as a witness in support of Joe’s alibi was not mentioned in his police interview
A fact that Joe could reasonably have been expected to mention; CJPOA 1994, s.34(1)
That failing can be relevant to a Case to Answer and/or Guilt; s.34(2)(c) & (d)

*Failure to Mention Alibi Witnesses in Defence Statements
Adverse comment made and/or inference may be drawn if D fails to mention alibi witness in Defence Statement; CPIA 1996, s.11(2)(f)(iii)
Adverse inferences drawn from failures re Defence Statement may be used to decide Guilt but not Case to Answer; s.11(5)(b)


Joe’s ‘Late’ Defence Statement & Sole Evidence

Joe’s Defence Statement served late, i.e. not within 28 days of prosecution disclosure; s.11(2)(b)
The prosecution can XX Joe on this failing
Prosecution with leave (s.11(7)) may make such comment in closing speech as appears appropriate; s.11(5)(a)
Judge may make such comment in summing up as appears appropriate; s.11(5)(a)
Jury may draw such inferences as are proper when deciding whether the accused is guilty; s.11(5)(b)

Adverse Inferences: Sole Evidence
In a direction on inferences the jury should be told that Joe cannot be convicted solely on the basis of adverse inferences arising from serving a Defence Statement out of time; s.11(10) CPIA 1996
c.f. s.38(3) CJPOA 1994: no conviction etc. wholly or mainly on silence


Imran’s Silence in Police Interview

‘No comment’ interview – no adverse inference as Imran does not rely on any facts as he does not give any evidence at trial
s.34 CJPOA 1994

Before silence in interview is used against a defendant, the jury must be sure that s/he could reasonably have been expected to mention the facts he now relies on
Adverse inferences from silence in interview may be used in determining whether there is a Case to Answer and/or in deciding Guilt
CJPOA 1994, s.34(2)(b)&(c)
Judge would draw on old JSB Specimen Direction 40, retained in Appendix 2 The Crown Court Bench Book, 2010


Imran’s Silence at Trial

Imran’s silence at trial: the judge should direct jury that
Jury should not assume guilt thereby
But Imran’s silence at trial may count against him if jury conclude that he did not give evidence because he had no answer to the Crown’s case
Jury cannot convict him wholly or mainly on his silence
See s.35 CJPOA 1994
Provision does not render a defendant compellable
s.35 also applies to an accused’s refusal to answer specific questions while giving oral evidence
Inferences not drawn where
Guilt not in issue, e.g. Newton Hearing, or
Physical/ mental condition of defendant makes it undesirable that s/he gives evidence


McEvoy’s Failure to Account for His Presence

Part (a)
No special caution (s.37- see next) and no evidence given by McEvoy: therefore no inference to be drawn (s.34)
Part (b)
Failure to account for his presence: no inference under CJPOA 1996, s.37 because the required ‘special caution’ was not given
See s.37(1)(b) & (c)
Notwithstanding by virtue of s.37(5) inference may be drawn under s.34; i.e. that he was on his way home from a night at The Maiden pub was a fact relied on in his defence that he could reasonably have been expected to mention in his police interview
Note that where inferences are drawn under s.37, they may be used to establish a Case to Answer and/or prove Guilt
s.37(2)(c) & (d)


McEvoy’s Failure to Explain Bruises

Part (c)
Failure to explain bruises: an inference under CJPOA 1996, s.36 because the required ‘special caution’ was given
See s.36(1)(b) & (c)
Note: even if ‘special caution’ had not been given, by virtue of s.36(6), inference may be drawn under s.34

Where inferences are drawn under s.36, they may be used to establish a Case to Answer and/or prove Guilt
s.36(2)(c) & (d)


Failure to Disclose Witness: Sarah Jones

Part (d)
Defendant is required to give notice to the court and prosecution indicating whether he intends to call witnesses and if so to give their names, address and date of birth or such information that will help supply that information; CPIA 1996, s.6C(1)(a) & (b)
This is separate from the Defence Statement (though sometimes witnesses in addition to those in support of an alibi are specifically mentioned)
Comment and inferences may be drawn under s.11(4)(b) & s.11(5)

Inferences may be used to prove Guilt but not to establish a Case to Answer; s.11(5)(b)


Remaining Silent on Advice of a Solicitor

Part (e)
Whether an adverse inference is drawn depends on whether McEvoy
Genuinely and reasonably relied on that advice, or
Was a guilty person who was shielding behind the advice of the solicitor
See Beckles v UK [2005] 1 WLR 2829 & Betts and Hall [2001] 2 Cr App R 257
Note: CJPOA 1996, s.34(1) states that adverse inferences may only be drawn in situations where the defendant could “reasonably have been expected to mention” a fact which he later relies on
A bare assertion by an accused that he remained silent because his solicitor told him to would not be enough to prevent an adverse inference being drawn; Condron v Condron [1997] 1 WLR 827, CA
Jury will be directed that they can only use silence against defendant where they are sure he was not genuinely relying on advice from solicitor to remain silent



Evidence of lies and silence is circumstantial evidence
Lies and silence may lead to inferences that may be used when deciding whether there is a Case to Answer and/or the defendant’s Guilt
Judges must direct juries carefully on silence to preserve fundamental principles/convention rights
D cannot be convicted on his silence alone
Inferences from silence can be drawn even where D says he relied on advice of solicitor
Failures in defence disclosure (e.g. omissions in a Defence Statements) may lead to inferences only when deciding a defendant’s Guilt
Defective Defence Statements may attract adverse comment from court and any party may be given leave to make adverse comments on failings