#13797 - Inferences From Silence - BPC Criminal Litigation (formerly BPTC) 2024/2025

Inferences from Silence & Evasive Conduct

(1) Failure to Mention Facts (s34 YJCEA)

s13 YJCEA 1999 - Where D withholds a fact when:

• Questioned under caution;

• When being charged;

Which he could reasonably be expected to mention, and later presents it at trial, inferences may be drawn. - "such inferences as appear proper".

When can you rely on adverse inferences?

• D must have been questioned under caution

  • "You do not have to say anything. But it may harm your defence if you do not mention, when questioned, something you later rely on in court. Anything you do so may be given in evidence" - This is to inform D of the effect of s34 YJCEA.

  • No inference may be drawn if D has not had the opportunity to speak to a solicitor, whether lawfully or unlawfully withheld.

  • D's waiver of legal advice must be "Voluntary, informed and unequivocal".

• D fails to mention a fact relied on

  • In court means EiC, XX or RE, or what counsel puts forward. Thus, it doesn't include failing to give any evidence and putting the Crown to proof!

  • If D varies his account, the correct approach is a lies direction (credibility) rather than s34 CJPOA.

  • A prepared statement in lieu of answering questions cannot found an inference, unless D relies on facts not mentioned in the statement.

  • The fact must be known to D at the time (s34 can't apply where D did not know of fact)

  • It does not apply to facts which are undisputed.

• The fact should reasonably have been mentioned

  • Facts "which, in the circumstances existing at the time the accused could reasonably have been expected to mention."

    • Age;

    • Mental Capacity;

    • Health;

    • Sobriety;

    • Tiredness;

  • Personality;

  • Thus, may be reasonable to be quiet if ill, tired, frightened, drunk, suspicious.

  • "Reasonable" takes into account legal advice. Reliance on legal advice doesn't preclude a court drawing adverse inferences. Jury must determine whether D relied on legal advice because D's silence can only be sensibly attributed to having no answer, or none that would stand up to scrutiny. The waiver of legal advice privilege must be voluntary, informed and unequivocal. But it doesn't waiver all privilege, just in relation to the specific advice not to testify!

  • NB: Can't draw an inference if legal advice is withheld lawfully or unlawfully!

  • s38(3) CJPOA - Can't find a case to answer, nor convict, solely on the basis of an adverse inference. So this is a key limitation!

"Argent" Six - Direction

1. There had to be ongoing proceedings;

2. Failure to mention had to occur before charge;

3. Questioning under caution;

4. Questioning related to the offence charged;

5. D failed to mention something relied on in his defence;

6. D could reasonably have been expected to mention it when so questioned.

(2) Failure to account for objects, substances, marks (s36 YJCEA)

When D fails or refuses to explain an object, substance or mark on his person, clothing, footwear or in his possession or in any place where he is at the time of his arrest. It includes the condition of clothing or footwear too. It does not apply to any object, substance or mark, only those that are sufficiently proximate to the accused at the time of arrest.

There is no question of reasonableness - Only whether D accounted for himself.

It only applies after arrest;

Requirement to use "ordinary language" to explain

This can't form the sole base for conviction.

Conditions for Reliance

1. D is under arrest (not merely cautioned);

2. There is

   1. On his person;

   2. In or on his clothing or footwear;

   3. In his possession;

   4. In any place where he is arrested (where arrested, so not just any place in the world!!!)

any object, substance or mark, or a mark on the object and

3. Constable reasonably believes object/substance mark is attributable to D's participation in a crime;

   1. NB: Can't make an adverse inference for failing to account for a fingerprint, or blood as it is not reasonable to know whose blood it is at the time of questionning, unless officer asks you "IS there any reason we'd find your fingerprints in this property" and you could say "Yes, I was in the property yesterday, and that is how my fingerprints ended up in here."

4. Constable informs D of this belief, requests explanation;

5. Constable informs D, in ordinary language, of consequences of failure to provide explanation. (Without this, no inference can be drawn)

6. D fails to give explanation.

Example:

1. Arrest - "I'm arresting you on suspicion of burglary.

2. Caution - “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.”

3. Explain Belief - "I believe that TV in your possession indicates you've been involved in burglary, how do you explain yourself?"

4. Explain Consequences - "It could harm your defence at trial if you do not give an explanation for your possession of the television."

5. Take to station.

(3) Failure to Account for Presence at a Place

Conditions for Reliance

1. D is under arrest (not merely cautioned);

2. D was found at or about a place where the offence was committed;

3. Place includes any builing, vehicle, vessel, aircraft,hovercraft any place whatsoever.

4. Constable reasonably believes D's presence is attributable to D's participation in a crime;

5. Constable informs D of this belief, requests explanation;

6. Constable informs D, in ordinary language, of consequences of failure to provide explanation. (Without this, no inference can be drawn)

7. D fails to give explanation.

Example:

1. Arrest - "I'm arresting you on suspicion of burglary.

2. Caution - “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.”

3. Explain Belief - "I believe that your presence on this street indicates you've been involved in burglary, how do you explain yourself?"

4. Explain Consequences - "It could harm your defence at trial if you do not give an explanation for your presence."

5. Take to station.

(4) Failure to Testify (s35(2) YJCEA)

When may an inference be drawn?

• "If D is aware the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, refuses without good cause to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper..."

• The burden of explaining the consequences are on D's lawyer. Judge will direct the jury.

When can't inferences be drawn?

8. If D's guilt is not in issue;

9. D's mental/physical condition make it undesirable to give evidence; (v rare, as in this case, D would be unfit to plead, or if less serious, use an intermediary!)

10. D is excused from answering questions on grounds of statutory entitlement, privilege, discretion of the court.

NB: IF W...