Topic 11 - Evidence - Inferences

Question 1

What is the significance of the right to silence prior to 1994?

Answer 1

Defendants had the absolute right to say nothing and require the prosecution to prove the case against them.

The right to silence is entrenched in the European Convention on Human Rights and is an essential part of the justice system.

Question 2

How did the Criminal Justice and Public Order Act (CJPOA) 1994 affect the right to silence?

Answer 2

It substantially eroded the right to silence, allowing juries to draw conclusions from a defendant’s silence in certain circumstances.

Sections 34–37 of the CJPOA permit juries to hold the defendant’s silence against them when assessing guilt.

Question 3

Define ‘inference’ in the context of legal proceedings.

Answer 3

‘Common sense conclusion’.

An adverse inference is a conclusion that is against the interests of a party in proceedings.

Question 4

What does Section 34 of the CJPOA 1994 allow regarding a defendant’s silence?

Answer 4

It allows the jury to draw adverse inferences from a defendant’s failure to mention facts during questioning or charging when those facts could reasonably have been expected to be mentioned.

This provision aims to achieve early disclosure of a defendant’s account.

Question 5

What are the conditions for drawing an inference under Section 34 CJPOA?

Answer 5

A defendant must:
* Be questioned under caution
* Fail to mention a fact that could reasonably be expected to be mentioned
* Later rely on that fact in their defense.

The court may draw any inferences that appear proper if these conditions are met.

Question 6

What is required for an inference to be drawn under Section 34 regarding failure to mention a fact?

Answer 6

The defendant must have been questioned under caution about their suspected involvement in the offence.

If the caution is not administered, no adverse inference may be drawn.

Question 7

What must the prosecution prove for an inference to be drawn from a defendant’s silence?

Answer 7

The prosecution must prove that the defendant failed to answer questions regarding the offence.

The police must ask the right questions; otherwise, no inference can be drawn.

Question 8

What is the effect of a prepared statement in the context of a defendant’s silence?

Answer 8

A fact can be ‘mentioned’ through a prepared statement even if the defendant subsequently answers ‘no comment’.

This method helps prevent further self-incrimination.

Question 9

Under what circumstances can a court not draw an inference from a defendant’s silence?

Answer 9

If the defendant was not allowed to consult a solicitor prior to being interviewed or charged.

This applies regardless of whether the delay in access to legal advice was lawful or unlawful.

Question 10

What limitations exist regarding convictions based on inferences drawn under Section 34 CJPOA?

Answer 10

There can be no conviction solely based on an inference drawn from silence.

Juries must be directed that an inference alone cannot prove guilt.

Question 11

What does Section 36 of the CJPOA 1994 address?

Answer 11

It permits an adverse inference to be drawn when an arrested person fails to explain an object, substance, or mark on their person at the time of arrest.

The police must inform the accused of their belief regarding the object’s relevance.

Question 12

What are the conditions for drawing an inference under Section 37 CJPOA regarding silence at the scene of a crime?

Answer 12

The accused must:
* Be arrested near the crime scene
* Be requested to explain their presence
* Be informed of the consequences of refusal to explain.

The only question is whether the accused accounted for their presence.

Question 13

What does Section 35 CJPOA state about failure to give evidence at trial?

Answer 13

It allows adverse inferences to be drawn if a defendant refuses to testify or answer questions.

The defendant must be warned that the jury may draw adverse inferences from their silence.

Question 14

What is the role of the judge regarding inferences under Section 34?

Answer 14

The judge decides if an inference is capable of being drawn, while the actual drawing of the inference is left to the jury.

The judge must tailor directions based on the facts of each case.

Question 15

What does Section 35 of CJPOA 1994 address?

Answer 15

It addresses the situation where a defendant refuses to give evidence at trial or refuses to answer certain questions.

This section allows for adverse inferences to be drawn from a defendant’s silence under specific conditions.

Question 16

What must occur for adverse inferences to be drawn under Section 35?

Answer 16

The defendant must be informed that they may give evidence and warned that the jury may draw adverse inferences from their failure to testify.

This warning must be made in the presence of the jury.

Question 17

What inference is often drawn from a defendant’s silence under Section 35?

Answer 17

The inference that the accused ‘is guilty of the offence charged’.

However, a conviction cannot be based solely on this inference.

Question 18

Under what conditions can adverse inferences not be drawn?

Answer 18

If the defendant’s guilt is not in issue or if the defendant’s physical or mental condition makes it undesirable for them to give evidence.

These exceptions are rare and often relate to the defendant’s ability to comprehend proceedings.

Question 19

What is a ‘Lucas direction’?

Answer 19

A warning to the jury against the reasoning that a defendant’s lies automatically demonstrate guilt.

It is necessary when the defendant’s lies do not directly link to guilt.

Question 20

In what situations is a Lucas direction typically required?

Answer 20

• When the defence is alibi
• When corroboration is suggested
• When the prosecution uses a lie as evidence of guilt
• When the jury may find a lie as evidence of guilt

These situations can overlap.

Question 21

What must the jury be sure of to use a defendant’s lies in support of the prosecution’s case?

Answer 21

• The defendant has told a lie
• The lie was deliberate
• The lie relates to a material issue
• There is no innocent explanation for the lie

Conviction should not be based solely on the lies.

Question 22

What is the general rule regarding evidence in criminal trials?

Answer 22

Evidence must be relevant and probative to a fact or issue to be admissible.

If evidence is not relevant, it will not be admissible.

Question 23

What is hearsay evidence?

Answer 23

Evidence that is not directly given, where a witness reports what someone else said outside of court.

It is considered inadmissible in criminal courts due to the potential for injustice.

Question 24

What are some exceptions to the rule against hearsay?

Answer 24

• Witness statements that are unchallenged
• Statements read in court when a witness is unavailable
• Certain statutory exceptions under the Criminal Justice Act 2003

The criteria for admissibility must still be met.

Question 25

What is required for bad character evidence to be admissible in court?

Answer 25

It must meet one of the seven gateways outlined in the 2003 Act. ## Footnote These gateways include agreement by parties, explanatory evidence, and relevance to important matters.

Question 26

What does 'bad character' encompass?

Answer 26

Misconduct or other reprehensible conduct not pertaining to the offence itself. ## Footnote Examples might include gang membership.

Question 27

What is the significance of the 'gateway' related to propensity in bad character evidence?

Answer 27

It allows for evidence of a defendant's previous convictions to show a propensity to commit similar offences. ## Footnote This is essential for establishing context in cases.

Question 28

What establishes that offences are of the same description?

Answer 28

Offences are of the same description if they are written in the same terms, such as theft and theft or ABH and ABH.

Question 29

How are offences categorized under the statute?

Answer 29

Offences belong to the same category prescribed by the Secretary of State, limited to theft offences and offences under the Sexual Offences Act.

Question 30

What does the Court of Appeal guidance in Hanson stipulate regarding propensity?

Answer 30

The history of previous offending must establish a propensity to commit offences and whether that makes it more likely that the defendant committed the offence.

Question 31

Is there a minimum number of convictions necessary to demonstrate propensity?

Answer 31

No, there is no minimum number of convictions necessary to demonstrate propensity.

Question 32

What is unlikely to show propensity in terms of previous convictions?

Answer 32

A single previous conviction for an offence is unlikely to show propensity unless it demonstrates a particular or unusual type of behaviour.

Question 33

What should the court consider when admitting a previous conviction?

Answer 33

The court must consider the case overall and what other evidence exists against the defendant.

Question 34

What is a cut-throat defence?

Answer 34

A cut-throat defence is where two or more defendants blame each other, and one may wish to introduce the other's previous convictions.

Question 35

When can bad character evidence be admitted to correct a false impression?

Answer 35

This is available to the prosecution when a defendant asserts they are a person of previous good character.

Question 36

What happens if the defendant attacks another person's character?

Answer 36

Previous convictions or bad character can be admitted if the defendant has accused a prosecution witness of lying or behaving reprehensibly.

Question 37

What is a safeguard regarding the admission of bad character evidence?

Answer 37

The court must not admit evidence if it would have an adverse effect on the fairness of the proceedings.

Question 38

What is a confession defined as?

Answer 38

A confession is a statement wholly or partly adverse to the person who made it, made orally or in writing, to anybody.

Question 39

What is Section 76 PACE concerned with?

Answer 39

Section 76 PACE prevents confessions from being presented if they were obtained through oppression or as a result of things said or done.

Question 40

What constitutes oppression in the context of confessions?

Answer 40

Oppression includes torture, inhumane treatment, violence, or threat of violence.

Question 41

What is a voir dire?

Answer 41

A voir dire is a trial within a trial to resolve factual matters related to legal arguments.

Question 42

What must the court consider regarding visual identification evidence?

Answer 42

The court must consider the reliability of the identification evidence and whether the witness may have made a mistake.

Question 43

What is the legal burden of proof?

Answer 43

The legal burden is on the prosecution to prove the case beyond reasonable doubt.

Question 44

What is the evidential burden?

Answer 44

The evidential burden arises when the defence raises an issue, shifting the focus to the prosecution to disprove it.

Question 45

How does the legal burden differ from the evidential burden?

Answer 45

The legal burden is the obligation to prove something beyond reasonable doubt, while the evidential burden is only triggered once an issue is raised.

Question 46

What happens if the prosecution fails to establish a case to answer?

Answer 46

If there is insufficient evidence, the case should be stopped at that point, usually in response to a defence application.

Question 47

What is a key consideration when assessing evidence in court?

Answer 47

The manner in which the witness gave evidence and their responses under cross-examination.