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Adverse Inferences Notes

BPTC Law Notes > Criminal Evidence Notes

This is an extract of our Adverse Inferences document, which we sell as part of our Criminal Evidence Notes collection written by the top tier of City Law School students.

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

ADVERSE INFERENCES AGAINST THE DEFENDANT DEFENDANT'S SILENCE Silence upon Being Questioned s34 Criminal Justice and Public Order Act 1994 ("CJPOA") Where evidence is given that Defendant did not disclose a fact when:

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questioned under caution (not yet charged), or

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charged with offence/informed might be prosecuted,

The court/jury may draw such adverse inferences from the failure as appear proper when:

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determining whether there is a case to answer, and

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determining whether Defendant is guilty of the offence.

Q1:Can Inferences be made?
Duty to Disclose Defence Defendant has a duty to disclose his defence when questioned But duty is not absolute - failure to disclose defence will only lead to adverse inferences if it was unreasonable Timing Inferences apply when failure in:

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interview before charge
* duty not to cease interview until Defendant "has said all wishes to say"

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upon being charged

If interview excluded - may nonetheless be adverse inferences by Defendant's failure to mention fact when charged (even though may have mentioned it in the excluded interview) Where Interviewed If Defendant interviewed at PS - no inferences if not given opportunity to consult a solicitor (no matter why)

Q2: Did Defendant fail mention a Fact later relied on in Court?
Fact later relied on in Court "Fact" - broad meaning - any fact/issue put forward as part of Defence case Question: Could he reasonably have been expected to advance the "fact" earlier?

Relying on a Fact Defendant "relies on a fact" when:

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Defendant gives evidence of that fact, or

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Defence counsel put a specific/positive case to Prosecution Witnesses (not where just testing Prosecution evidence)

Importance of Fact For trial Judge to determine whether the (unmentioned) fact is sufficiently important to amount to Defendant "relying on" it.

Q3: Was the Failure/Omission to Mention the Fact "Unreasonable"?
s34 - Unmentioned fact must be "a fact which, in the circumstances existing at the time, Defendant could reasonably be expected to have mentioned." If Defendant has a reason/explanation for omission must:

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Present reason/explanation to Jury, and

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Direct Jury to consider whether:
* It accepts that this was the genuine reason for the omission, and

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If not:
* Is there any other explanation for the omission which is commensurate with Defendant's innocence? Or
* Is the only explanation that Defendant was guilty.

Legal Advice Where Defendant omits the fact due to legal advice, Jury must consider whether:

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The genuine reason for Defendant's omission was the legal advice given,
* Question: did Defendant genuinely and reasonably rely on the advice?
* Consider: circumstances of advice and personality of Defendant (not concerned with correctness of advice)

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If not:
* Is there any other explanation for the omission which is commensurate with Defendant's innocence? Or
* Is the only explanation that Defendant was guilty.

Evidence of the legal advice may be adduced by:

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Evidence of Defendant - not hearsay as not tendered to prove truth of advice, only that it was given, or

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Legal adviser's oral evidence.

If Defendant/Legal adviser only gives evidence that the advice to stay silent was given - legal advice privilege is not withdrawn But if Defendant/legal adviser gives evidence of the reasons for the advice - legal advice privilege is withdrawn

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unless allegation of recent fabrication - Defendant had no choice but to adduce reasons - no waiver of privilege.

Effect of Omission If conclude Defendant unreasonably omitted to mention a fact later relied on in Court - may draw such adverse inferences as appear proper Trial Judge should direct Jury on what inferences might be drawn in each case.

Direction When Required Judge must direct Jury when:

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Judge concludes that Defendant relied on a fact, and

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Jury conclude Defendant's failure to mention it in questioning was unreasonable

Not when Prosecution has not sought to rely on s34 - Judge should not invite Jury to consider making adverse inferences (and, therefore, give the direction) without speaking to counsel first. The Direction Judge should identify the fact(s), not mentioned, which Defendant has relied upon Jury must be directed that:

1. Defendant is not bound to answer police questions,

2. An inference from silence cannot prove guilt on its own

3. Prosecution must have established a case to answer before any inference can be drawn

4. For Jury to decide whether the failure was unreasonable - If decide it was they may, not must, draw inferences against Defendant, and

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Judge should identify any reasons given by Defendant for the failure * Satisfied this was not the genuine reason for the omission?
* Any other explanation commensurate with Defendant's innocence?
* Only explanation Defendant's guilt?

5. Can only draw such inferences if satisfied that Defendant's silence was because he had no reason which would stand up in court. If multiple Defendants - give the direction for each Defendant separately.

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