Topic 13- Inferences

Question 1

Can lies told by the accused make a positive case for a crime?

Answer 1

No, not on their own

Question 2

What do lies told by an accused indicate?

Answer 2

They may indicate a consciousness of guilty and can be relied upon by the prosecution as evidence

Question 3

Does an accused have a right to silence?

Answer 3

Yes

Question 4

What is a right to silence also known as?

Answer 4

Privilege against self-incrimination

Question 5

Is an accused under a duty to assist the police?

Answer 5

No, as they are not a compellable witness at trial

Question 6

Can inferences be drawn from the right to silence?

Answer 6

Yes

Question 7

What statute helped inferences to be drawn from silence?

Answer 7

s34 to 38 CJPO 1994

Question 8

Where an accused fails to mention any fact relied on in his defence or stays silent, can inferences be drawn from this?

Answer 8

Yes, the jury my draw such inferences from the failure or silence

Question 9

What does Section 34 of the CJPO 1994 permit?

Answer 9

Inferences to be drawn from an accused’s failure to have reasonably expected to reveal specific facts

Question 10

Can adverse inferences be drawn from silence in an interview?

Answer 10

No, this is incompatible with article 6 ECHR

However, there are exceptions

Question 11

If an accused stays silent during an interview, can adverse inferences be drawn from this?

Answer 11

No

Question 12

If an accused has not yet consulted with a legal advisor, when can inferences be drawn from his silence?

Answer 12

Once he has obtained legal advice

Question 13

Can an accused be convicted solely on the inference from silence?

Answer 13

No

Question 14

If the accused makes no attempt to put forward a previously undisclosed fact, can inferences be drawn from this?

Answer 14

No

Question 15

If the accused responds “no comment” to a single question in an interview, can an adverse inference be drawn from this?

Answer 15

No

Question 16

Can inferences be drawn before a suspect is charged?

Answer 16

No, except on being questioned under caution

Question 17

If an accused refuses to leave his cell, so cannot be questioned, can adverse inferences be drawn from this?

Answer 17

No, as the statutory language does not apply

Question 18

Where a fact has been relied on in defence, which the accused could have reasonable mentioned, can adverse inferences be drawn?

Answer 18

Yes,

but any explanation from the accused as to why it was not mentioned must be considered when deciding what inferences to draw

Question 19

What factors will the court look at in deciding what inferences to be drawn where an accused failed to mention a fact?

Answer 19

Age
Experience
Mental capacity
Sobriety
Health
Tiredness
Personality

Question 20

If an accused has been given legal advice to remain silent, what inferences can be drawn?

Answer 20

Genuine reliance will not result in adverse inference

However, it will depend on the circumstances- for example, if they had no explanation, then adverse inferences can be drawn

Question 21

If an accused has a good defence but chose on legal advice to remain silent, what inferences can be drawn?

Answer 21

No inference should be drawn

Question 22

If an accused has remained silent after relying on legal advice, can they explain why?

Answer 22

Yes, for example that he had genuine reliance on the legal advice

However, they would have to likely waive legal privilege to explain why

Question 23

What is the key factor for a jury to draw inferences from a failure to mention a fact?

Answer 23

The accused must have REASONABLY been expected to mention the fact

Question 24

Where s34 CJPO is to be relied upon, what must the judge do?

Answer 24

The judge must make a clear judicial direction to the jury as to the nature of the inference

Question 25

What are the key elements of the direction for s34 CJPO (Crown Court only)

Answer 25

A reminder that the accused was cautioned, so they had a right to say nothing Any possible reasons for the failure The conclusions that can be drawn from the failure Whether an answer was reasonably expected in the interview An instruction only to draw an adverse inference if it is fair and proper

Question 26

What is the three stage test in Magistrates Court for applying s34 CJPO?

Answer 26

Has the defendant relied in his defence on a fact he could reasonably have expected to mention, but did not? What is his explanation for the failure? If the explanation is not reasonable, is the proper inference to be drawn that he is guilty?

Question 27

If the prosecution does not rely upon s34 CJPO to draw an inference, does the judge have to make a direction?

Answer 27

Yes, they ought not to leave it open to the jury to draw their own inferences

Question 28

Where something has been said by the accused which the prosecution claims both conceals a fact later relied on and constitutes a positive lie, what should the judge do?

Answer 28

The judge may make a s34 CJPO direction and a Lucas direction However, it is sometimes preferred to just use a single direction and modify it

Question 29

What is s36 CJPO?

Answer 29

Where a person is arrested and on his person, clothing, possession, etc, there is an object, mark, or substance, and the person then fails or refuses to account for it, then the jury may draw inferences from it

Question 30

What is s37 CJPO?

Answer 30

Where a person is arrested in a place or at a certain time, and the person then fails or refuses to account for it, then the jury may draw inferences from it

Question 31

What are the four conditions to be satisfied for an inference to be drawn under s36 or s37 CJPO?

Answer 31

The accused is arrested A constable reasonably believes the object, place, etc is attributable to the accused's participation in a crime The constable informs the accused of his belief and requests an explanation The constable uses ordinary language of the effect for the failure to comply with the request

Question 32

Where an accused fails to answer in a s36 or s37 circumstance, and the conditions are satisfied, what inferences can be drawn?

Answer 32

Only proper inferences can be drawn The jury must be satisfied that the accused has failed to account for the relevant matter

Question 33

What does s38 CJPO provide?

Answer 33

That an inference drawn under s36 or s37 may contribute to a verdict of guilty However, guilty verdict usually cannot be based solely on an inference (unless it is very obvious)

Question 34

Can the failure of an accused to testify be subject to a comment by the prosecution, under the CJPO 1994?

Answer 34

Yes, inferences from failure to testify are permissible

Question 35

What does the nature of inferences from an accused's failure to testify depend on?

Answer 35

Depends on the way in which the evidence has developed and the strength of the prosecution case = the stronger the case, the higher the inferences

Question 36

If an accused says he does not want to give evidence, what must the judge tell him?

Answer 36

The judge must tell them about the consequences of declining to do so

Question 37

If the accused fails to testify due to a mental or physical condition, what direction should the judge make?

Answer 37

The judge must be very careful in directing the jury about this

Question 38

What is the nature of an inference under s35 CJPO?

Answer 38

The inference that may be drawn is that the accused is guilty as charged due to the fact they did not testify

Question 39

Can an accused be convicted solely on failure to testify (s35 CJPO)?

Answer 39

No, the prosecution remain under an obligation to establish a prima facie case before any question of the accused testifying is raised

Question 40

Where an accused has not testified, what circumstances must there be for the court to not make an adverse inference direction to the jury?

Answer 40

There must be some evidential basis or exceptional factors for not doing so

Question 41

Where a prosecution's case is weak, and an accused fails to testify, what inferences can be drawn?

Answer 41

Inferences cannot be drawn from a failure in cases where there is a weak evidential basis

Question 42

Where an accused fails to testify or explain facts within their knowledge, what inferences can be drawn?

Answer 42

Strong inferences can be drawn from this, where the accused does not make an explanation

Question 43

If an accused has given a reasonable explanation as to why he lied, what direction should the judge give the jury in relation to the lie?

Answer 43

That the jury must consider whether there was an innocent motive for the lie to be made before ruling on it to support evidence of guilt

Question 44

When can inferences be drawn from an accused' silence after they say they relied on the advice of their solicitor?

Answer 44

Only where they are sure that the accused was not genuinely relying on their solicitor's advice, because they had no satisfactory answer to give

Question 45

What are three directions contained in a Lucas direction to the jury?

Answer 45

The lie must be: Made deliberately and inadvertently Motivated by a realisation of guilt Be concerned with a material issue in the case

Question 46

When is a Lucas direction given?

Answer 46

Where an accused has admitted they have lied to police The Judge must then ensure the jury are given careful guidance in considering the lie told

Question 47

If an accused made a no comment interview, and then did not give evidence at trial, what direction may the judge give on inferences that can be drawn?

Answer 47

Only inferences on the fact that he did not give evidence at trial CANNOT DRAW INFERENCES ON THE NO COMMENT INTERVIEW, as he has not advanced a positive case