BPTC Law Notes BPTC Criminal Litigation Notes
A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
In short, these are what we believe to be the strongest set of BPTC notes available in the UK this year. This collection of BPTC notes is fully updated for recent exams, ...
The following is a more accessible 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:
INFERENCES FROM SILENCE
pre-trial out of court silence:
silence under questioning (s34 CJPOA)
failure to explain objects, substances or marks on D's person at time of arrest (s36 CJPOA)
failure to explain presence at the scene of the crime (s37 CJPOA)
silence after prosecution has commenced
failure to produce defence statement (s11 CPIA)
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:
relies on a fact in his defence
if D gives evidence / calls Ws
puts forward a specific positive case to pros Ws in XX (as opposed to merely testing pros evidence)
trial judge decides whether facts important enough to engage s34
fact must relate to whether OR by whom offence committed
if fact shown to be true before verdict, NO adverse inference can be drawn (rare)
-----AND-----
did NOT mention that fact when questioned under caution OR charged
when questioned - questioning must be under caution AND before charge
if D alleges mentioned fact before recorded police interview, burden on pros to prove did NOT BRD for adverse inferences
if alleged silence pre-interview, officer must put to D, otherwise evidence may be excluded under s78
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
upon being officially informed will be prosecuted (other ways of commencing pros than charge)
-----AND------
fact is one D could have reasonably been expected to mention
incriminating evidence must be put to D during interview
D must call evidence to prove failure to mention reasonable
jury can only draw adverse inference if sure BRD that only reason D failed to mention fact was because had no answer OR none that would stand up to XX
remaining silent on basis of legal advice:
can be good reason for remaining silent, if D 'genuinely and reasonably' relies on it
has privilege been waived so D can be XX'd on advice?
bare assertion by D that he was advised to remain silent
anything more than bare assertion
if allegation of recent fabrication made against D in XX, so D has no choice but to disclose the advice
fact mentioned in prepared statement: CANNOT draw adverse inferences even if D then refuses to answer questions
who must conduct the questioning?
police officer; OR
person with duty of investigating offences
access to legal advice
if questioning in 'authorised place of detention' (usually police station) CANNOT draw inferences if D NOT given opportunity to consult solicitor
if D makes informed choice to refuse solicitor, inferences can be drawn
The effect of failure to mention a fact
jury may draw 'such inferences as appear proper'
trial judge should give guidance on what 'proper' inferences are
Jury direction
the direction
ID specific facts D alleged to have relied on
ID any reasons given by D for failure to mention
explain:
suspect NOT bound to answer police Qs
inference from silence CANNOT prove guilt on its own
pros must have established a case to answer before inference may be drawn
jury decide whether D could reasonably have been expected to mention defence - if think could, jury may (NOT must) draw inferences
jury can only draw inference if sure S silent because had no answer OR none that would stand up to XX
when is a direction required?
give direction in vast majority of s34 cases
if pros have NOT relied on s34, judge should NOT direct jury to draw adverse inference without first discussing with counsel
if overlap between s34 and Lucas, give hybrid direction e.g. D gives explanation that pros says is a lie AND relies on new defence at trial
when is a direction that the jury should NOT hold D's silence against (McGarry direction) him required?
if no comment interview proved (usual) and D does NOT advance new fact
COMMON LAW
adverse inferences can be drawn if:
D NOT cautioned; AND
questioner / accuser and D on equal terms i.e. member of public NOT police officer
SILENCE ON CONFRONTATION ABOUT PARTICULAR TYPES OF INCRIMINATING EVIDENCE
Failure to account for objects, substances, marks OR presence (s36, s37...
Buy the full version of these notes or essay plans and more in our BPTC Criminal Litigation Notes.
A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
In short, these are what we believe to be the strongest set of BPTC notes available in the UK this year. This collection of BPTC notes is fully updated for recent exams, ...
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