#15436 - Inferences From Defendant’s Silence And Other Conduct - BPC Criminal Evidence

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

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

• Inference cannot be drawn unless access to legal advice provided

Direction as to permissible inferences

• Inference of recent fabrication is permitted

• Where the inference which P suggests should be drawn is not the standard inference of late fabrication, judge should make this clear during summing up

• If accused advances a reason for not disclosing, direction should explicitly mention this

  • If reason is acting on legal advice, but reasons behind advice not mentioned, trial judge should be particularly careful to avoid directing the jury in such a way as to indicate that the silence is necessarily a guilty one

• Whether the drawing of adverse inferences infringes Art.6 is a matter to be determined:

  • In light of all the circumstances of the case

  • The weight attached to them by the national court

  • The degree of compulsion inherent in the situation

  • Terms of the judge's direction to the jury on the drawing of adverse inferences

Jury direction under s.34

• Where the judge directs the jury on the basis that s.34 applies, it is important that

  • Clear judicial direction required as to nature of the inference that may properly be drawn

  • The facts relied on should be identified in the course of the direction

  • Exception: judge was allowed some latitude in a complex case in not having to list all of the facts, as distinct from the parts of the defence case, which were not mentioned

• Judge should follow closely specimen direction, but to exercise discretion on facts

• Failure to give a proper direction will not, however, necessarily involve a breach of Article 6, nor render a conviction unsafe

• Direction to jury not to impeach co-accused when s.34 arises for accused is important

Failures in defence statements can be subject to adverse inferences

• Defence statements are irrelevant to submission of no case to answer

• At that point, defence has not raised its defence yet

• Thus, any flaws in defence statements cannot be considered at submission of no case to answer stage

CJPO 1994, ss.36 and 37 permit adverse inferences to be drawn from the accused’s failure to account for objects, substances, marks and his presence (at or about the time the offence is alleged to have been committed) if the following conditions are satisfied:

• Accused is arrested

• A constable (not necessarily the arresting officer) reasonably believes that the object etc may be attributable to the accused’s participation in the crime specified by the constable (s.36) or in the offence for which he was arrested (s.37)

• Constable informs the accused of his belief and requests and explanation of the matter in question

• Constable tells the suspect in ordinary language the effect of a failure or refusal to comply with the request

s.38(3): such inference cannot be the sole basis for conviction

CJPO 1994, s.35: court or jury can draw any proper adverse inferences from accused’s failure to testify without good cause, or refusal to answer a question without good cause after being sworn in

• Exception:

  • Accused’s guilt is not in issue

  • Appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence

• s.35(4): does not render the accused compellable to give evidence on his own behalf

• A person who refuses to answer after being sworn in is deemed to do so without good cause unless

  • He is entitled to refuse to answer the question by virtue of an enactment or privilege grounds

  • ...