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Inferences From Silence Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

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A more recent version of these Inferences From Silence notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Criminal Litigation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:


(a) pre-trial out of court silence: i. silence under questioning (s34 CJPOA) ii. failure to explain objects, substances or marks on D's person at time of arrest (s36 CJPOA)

iii. failure to explain presence at the scene of the crime (s37 CJPOA) (b) silence after prosecution has commenced i. failure to produce defence statement (s11 CPIA) ii. failure of D to testify in court (s35 CJPOA) PRE-TRIAL, OUT OF COURT SILENCE FAILURE TO REVEAL FACTS AFTERWARDS RELIED ON IN COURT (s34 CJPOA 1994) The caution when adverse inferences may be drawn

? '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.' When can inferences be drawn?

? if D: (a) relies on a fact in his defence i. if D gives evidence / calls Ws ii. puts forward a specific positive case to pros Ws in XX (as opposed to merely testing pros evidence)

iii. trial judge decides whether facts important enough to engage s34 iv. fact must relate to whether OR by whom offence committed v. if fact shown to be true before verdict, NO adverse inference can be drawn (rare)

(b) did NOT mention that fact when questioned under caution OR charged i. when questioned - questioning must be under caution AND before chargeif D alleges mentioned fact before recorded police interview, burden on pros to prove did NOT BRD for adverse inferencesif alleged silence pre-interview, officer must put to D, otherwise evidence may be excluded under s78

ii. upon being charged (at which point should be re-cautioned / reminded of caution)even if interview excluded under s78, may still draw adverse inferences for failure to mention facts on charge, provided NOT unfair

iii. upon being officially informed will be prosecuted (other ways of commencing pros than charge)

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