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Inferences From Defendant’s Silence And Other Conduct Notes

BPTC Law Notes > Criminal Evidence Notes

This is an extract of our Inferences From Defendant’s Silence And Other Conduct document, which we sell as part of our Criminal Evidence Notes collection written by the top tier of City Law School students.

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Syllabus 17: Inferences from Defendant's Silence and Other Conduct Accused has right to silence (a.k.a. privilege against self-incrimination)
- Corollary of right to fair trial
- Grants accused the following rights:

* Accused is not a compellable witness at trial

* Accused is under no general duty to assist the police with their inquiries (Rice v Connolly
[1966] 2 QB 414) Right to silence supplemented by right not to have inferences drawn from the exercise of the right to silence either by a suspect under investigation or by an accused person at his trial
- Exists as a common law right
- Statutory exceptions: CJPO 1994, ss. 34 to 38, which specify the circumstances in which adverse inferences may be drawn from the exercise of the primary right
- Where the statutory scheme does not apply, the common-law rule still applies (McGarry [1999] 3 All ER 805 s.38(3): A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from silence Lies
- Lucas direction

* The lie must be deliberate and must relate to a material issue

* They must be satisfied that there was no innocent motive for the lie, reminding them that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or a wish to conceal disgraceful behaviour

* The lie must be established by evidence other than that of the witness who is to be corroborated
- Burge [1996] 1 Cr App R 163: Lucas direction is usually required in four situations

* Defence relies on an alibi

* Judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant

* Prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved

* Judge reasonably envisages that there is a real danger that the jury may adopt the approach above

Out of Court Silences: Failure to Reveal Facts Afterwards Relied upon in Court Provision applies only where a particular fact is advanced by the defence which is suspicious by reason of not being put forward at an early opportunity
- s.34 does not apply simply because the accused has declined to answer questions
- s.34 is, however, capable of applying to a case in which the accused, though he discloses his defence, fails to mention a particular fact that he thereafter relies upon

* In such a case there is a discretion whether to give a warning during summing up

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