#10402 - Inferences From Silence - BPC Criminal Litigation (formerly BPTC) 2024/2025

INFERENCES FROM SILENCE

1. pre-trial out of court silence:

   1. silence under questioning (s34 CJPOA)

   2. failure to explain objects, substances or marks on D's person at time of arrest (s36 CJPOA)

   3. failure to explain presence at the scene of the crime (s37 CJPOA)

2. silence after prosecution has commenced

   1. failure to produce defence statement (s11 CPIA)

   2. 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:

1. relies on a fact in his defence

1. if D gives evidence / calls Ws

2. puts forward a specific positive case to pros Ws in XX (as opposed to merely testing pros evidence)

3. trial judge decides whether facts important enough to engage s34

4. fact must relate to whether OR by whom offence committed

5. if fact shown to be true before verdict, NO adverse inference can be drawn (rare)

-----AND-----

2. did NOT mention that fact when questioned under caution OR charged

1. 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

2. 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

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

-----AND------

3. fact is one D could have reasonably been expected to mention

1. incriminating evidence must be put to D during interview

2. D must call evidence to prove failure to mention reasonable

3. 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

4. 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

5. fact mentioned in prepared statement: CANNOT draw adverse inferences even if D then refuses to answer questions

• who must conduct the questioning?

1. police officer; OR

2. 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

1. ID specific facts D alleged to have relied on

2. ID any reasons given by D for failure to mention

3. explain:

   1. suspect NOT bound to answer police Qs

   2. inference from silence CANNOT prove guilt on its own

   3. pros must have established a case to answer before inference may be drawn

   4. jury decide whether D could reasonably have been expected to mention defence - if think could, jury may (NOT must) draw inferences

   5. 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:

1. D NOT cautioned; AND

2. 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 CJPOA 1994)

• court / jury can draw 'such inferences as appear proper' (whether D is G OR whether there is a case to answer) if:

1. D arrested; AND

   1. at the time of his arrest there is an object, substance or mark on his person, clothing, footwear, in his possession or in any place where he is; OR

   2. D found by officer at location of alleged offence or at relevant time

------AND------

2. officer / customs officer reasonably believes object, substance, mark or presence may be attributable to D's participation in commission of offence:

   1. specified by constable (object, substance, mark (s36)); OR

   2. for which D was arrested (presence (s37))

------AND------

3. officer /customs officer informs D of his belief AND requests explanation; AND

4. officer / customs officer informs D in ordinary language of reasons for suspicion AND effect of failure to give explanation; AND

5. if D in place of authorised detention, D was offered access to solicitor (common as only applies after arrest); AND

6. D fails to provide explanation

• CANNOT be convicted solely on failure to mention - need proof of suspicious circumstances for which D has failed to account

SILENCE AFTER COMMENCEMENT OF PROSECUTION

FAILURE TO SERVE DEFENCE STATEMENT (see Disclosure - SGS 5)

FAILURE OF D TO TESTIFY IN COURT (s35 CJPOA 1994)

• can draw 'such inferences as appear proper' (only whether D is G) if:

1. D's guilt IS in issue (would NOT be e.g. in a Newton hearing); AND

2. physical / mental condition of D does NOT make it undesirable for him to give evidence; AND

3. D fails to give evidence OR refuses to answer any questions; AND

4. D has:

   1. been warned by the court of effect of failure to give evidence

      • D legally represented:

        • counsel has duty to explain warning to client

        • counsel usually requests adjournment to advise

        • if doesn't, judge directs to advise and adjourns

      • D NOT legally represented:

        • in absence of jury, judge gives warning to D, ensures he understands, and offers adjournment to consider position

        • after adjournment, in presence of jury, judge gives warning and asks if D intends to give evidence

------ OR -------

2. stated that he will give evidence then failed to do so

------ AND -------

5. failure / refusal NOT justified by

   1. good cause (jury question); AND / OR

   2. legal privilege; OR

   3. because...