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BPTC Law Notes Criminal Evidence Notes

Inferences From Defendant’s Silence And Other Conduct Notes

Updated Inferences From Defendant’s Silence And Other Conduct Notes

Criminal Evidence Notes

Criminal Evidence

Approximately 176 pages

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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

Mischief s.34 seeks to address is ambush defences

Adverse inference which may be drawn under s. 34 includes a general inference of guilt

s.34 permits adverse inferences to be drawn if the accused later relies on facts which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed

  • Provided the evidence is given in one of the following circumstances

    • At any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings

    • On being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact

    • At any time after being charged with the offence, on being questioned under section 22 of the Counter-Terrorism Act 2008 (post-charge questioning), failed to mention any such fact

s.34(2A): Adversed inferences cannot be drawn where the accused was at an authorised place of detention at the time of the failure and had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed

Where the accused at the relevant time gives a prepared statement in which certain facts are set forth, it cannot subsequently be said that he has failed to mention those facts

‘Facts relied on’

  • A fact relied on may be established by a witness called by the accused, or may be elicited from a prosecution witness

  • Arises where D puts a specific and positive case to prosecution witnesses, as opposed to asking questions intended to probe or test the prosecution case

  • Adoption by counsel of evidence given by a co-defendant may amount to reliance on the relevant facts or matters

‘Facts which should have been mentioned’

  • Reason for failing to disclose should be explored

    • Any explanation advanced by the accused for non-disclosure must be considered in deciding what inferences, if any, should be drawn

  • A range of factors may be relevant to what might have been expected to be forthcoming, including age, experience, mental capacity, health, sobriety, tiredness and personality

  • Failure of the interviewer to disclose relevant information when asked to do so by the accused or his legal adviser is another factor bearing upon the propriety of drawing an inference

Legal advice to remain silent

  • Whether it is a genuine and reasonable reliance on the legal advice

    • If yes, no adverse inferences

  • Where this legal advice is the reason for not mentioning facts, and accused advances this reason as an explanation (see above), may (but not compelled to) waive privilege to bolster weight of reason

    • The giving of evidence at a voir dire as to the reasons for legal advice for silence would operate as a waiver of privilege at trial even if the evidence was not repeated before the jury

    • Where waiver takes place, the accused may be questioned about what disclosures were made even where it is accepted that the legal advice was given solely on the basis of the case as disclosed by the investigator

  • ...

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