Adverse Inferences

Question 1

Common law traditional position for D being completely silent

Answer 1

You are completely entitled to your common law to silence, innocent until proven guilty. The tribunal of fact (jury) were not entitled to draw any adverse inferences from your silence. It’s like putting the other side to complete proof (Prosecution). No impact whatsoever from not speaking.

Question 2

Now it’s changed, we now have a concept of Adverse Inference

Answer 2

This comes under CJPOA 1994 s34. If you don’t mention something you should have done, but then later mention it, we can draw inferences from this.

Question 3

Example

Answer 3

Arrested for murder, don’t say anything at the time, you have solicitors advice, a few months later you say, ‘it can’t have been me, I was somewhere else at the time’ (alibi). Can be adverse inferences drawn from this. He might not have mentioned his defence earlier as his alibi would have exposed his affair; a reasonable reason not to mention your defence.

Question 4

Police Caution

Answer 4

s34 – encompasses the point at which you’re cautioned and the point at which you’re charged with an offence.

Question 5

Section 35?

Answer 5

s35- Effect of accused’s silence at trial -
Failing to answer any questions doesn’t itself allow a s34 inferences to be drawn, it only comes into play if you mention something later which you didn’t mention prior.
Example - Luke silent from the point of questioning to trial, there’s no adverse inference. However, if he gives an alibi a week before the trial, inferences can be drawn as there’ll be an assumption that he’s made the alibi up.

Question 6

Inferences for silence is open for P and judge to talk about inferences for silent. Direction that judge gives to jury –

Answer 6

people might not disclose info for honest reasons, they’ll warn jury not to place too much weight on the silence/excuse, we also have a right not to self-incriminate e.g was drug dealing at the time the offence was committed’

Question 7

Once P has closed his case, D is the first person to be called. If you give evidence but refuse to answer questions or fail to testify in your own defence, this could be an adverse inferences scenario.

You are not compelled to give evidence on your own behalf. Also can’t compel you to give evidence if it goes against law that protects you eg right to not self-incriminate or incriminate a spouse.

Question 8

Newton hearing?

Answer 8

hearing within a hearing. Not connected to Ds guilt, it’s a technicality, so D doesn’t need to answer any questions.

Question 9

Would you give evidence if Ps case isn’t prima facie?

Answer 9

No, if they haven’t met the minimum standard, then put P to proof. If judge is content that there’s no case to answer, they’ll throw the case out.

Question 10

Section 36?

Answer 10

s36 – Effect of accused’s failure or refusal to account for objects, substances or marks –
Inferences should only be drawn after you’ve been properly processed (at the police station being questioned – PACE – authorised place).

Question 11

Section 37?

Answer 11

S37 – arrest – not a huge difference here between this and s36.

Question 12

Section 38?

Answer 12

S38 – catchall – defence – cannot be convicted based on s38 alone, why? Because it’s almost replacing the burden of proof and putting it on you just because you haven’t answered questions, which isn’t fair.

Question 13

Court will exclude it if they think the jury would attach too much weight to it. E.g. ‘there’s a prima facie case and adverse inferences, that must mean he’s guilty’

Question 14

Silence is based on legal advice

Answer 14

s34: entitled to not answer questions if you have legal right to do so eg self-incrimination, s34 also encompasses privileged information e.g. advice of solicitor.
Police can’t look at the advice that solicitor has given client as its legal advice privilege.

Question 15

If you say ‘I was silent due to legal advice I received’ but refuse to give info on that – then jury can draw inference, but if you explain (which will be waiving legal privilege) then they can no longer draw inferences as long as its legitimate and not a lie.

Answer 15

Example - When you’re giving advice to someone, make sure you write that advice down because you might need to prove what you actually said and usually, you’ll get the client to sign it as well, just in case they lie e.g. they are adamant to remain silent but in court they say that I advised them to be silent. You can’t waive the privilege; the client must waive it. If he doesn’t tell the truth in court, you can return the brief.

Question 16

Failure to provide sample - inference or no?

Answer 16

Inference can be drawn that you were guilty