#15005 - Pre Trial - Criminal Procedure and Evidence

Supervision 2 – Pre-trial

Drawing adverse inferences

• Prior to Criminal Justice and Public Order Act 1994, English law recognised a right to silence in the sense of a privilege against self-incrimination.

• In Bowden Lord Bingham recognised that s.34-38 should not be construed more widely than the statutory language requires.

• Stressed by ECtHR in Murray v UK that right to remain silent was crucial to Article 6, but that this right was not absolute.

  • Held in Beckles that trial judge’s failure to direct jury properly infringed Article 6.

  • Condron balance – article 6 and drawing adverse inferences.

  • In Bristow v Jones judge (in his direction) did not say that silence could not amount to guilt. CoA quashed conviction.

  • Interests of community balanced against individual (Brown v Stott).

• S.58 Youth Justice and Criminal Evidence Act 1999 prevents any adverse inferences being drawn unless accused has had an opportunity to consult a solicitor.

• Common law rule that an accused’s silence in the face of an accusation may be treated as evidence of an admission unaffected by 1994 Act (s.34(5)).

• Any discussion of adverse inferences takes place shortly before summing up.

S.34 – defendant fails to mention facts when questioned or charged

• Adverse inference may be drawn if D fails to mention facts that he later relies on in his defence.

• S.34 not triggered if Crown has no proof that D was aware of the fact (MB). Nor if D has extreme mental impairment (S and P – IQ of 51).

• Drawing of inference prevented unless opportunity to take legal advice offered.

• Key question is whether it was reasonable for D to remain silent. This is even if solicitor advised D to remain silent (Beckles).

  • Generally, if D argues that he remained silent because of legal advice, he has to sacrifice legal professional privilege and allow prosecution to explore the reasons for the advice (Seaton).

  • But if D merely adduces evidence that his lawyer advised him, he does not waive privilege (Bowden).

• Even if the omitted fact is central to determining guilt in the case, s.34 can still be invoked (Milford).

  • But subject to limit in s.38(3) that such inferences are alone insufficient for a finding of guilt.

• S.34 can be circumvented by the issuance of a pre-prepared statement. First allowed in Ali (Safraz). Confirmed by CoA in Knight.

  • Does timing of the statement matter?

  • But inferences can still be drawn if D departs from statement at trial (Mohammad).

  • Argued in Knight that purpose of s.34 was not to allow police questioning, so pre-prepared statements justifiable.

• Merely declining to be questioned cannot fall under s.34 (Johnson and Hind).

  • But s.34(1)(b) allows inferences to be drawn when suspect is ‘officially informed that he may be prosecuted’ (Goodsir / Dervish).

  • Code C:12.5 allows for interviews to take place in police cells.

• Seems that cases where a fixed decision has been made to charge D regardless of anything he says, will fall outside ambit of s.34 (Elliott).

• If evidence inadmissible, no inference can be drawn (Dervish).

• Birch argues for abolishment of s.34 and use of common law rules.

  • Too expensive and difficulties with interpretation.

• Dennis argues the scope of s.34 has been restricted.

  • Criminal Procedure and Investigations Act 1996 have dealt with the problem of ambush defences, which s.34 originally aimed to combat.

Jury directions

• Petkar direction given to jury if s.34 invoked.

  • The jury should be told that, if an inference is drawn, they should not convict “wholly or mainly on the strength of it”.

  • An inference should be drawn “only if...the only sensible explanation for his failure” is that he had no answer or none that would stand up to scrutiny.

  • An inference should only be drawn if, apart from the defendant’s failure to mention facts later relied on in his defence, the prosecution case is “so strong that it clearly calls for an answer by him”

• McGarry direction given if jury not entitled to draw inferences.

• Inadequate direction quashed conviction in Bresa.

S.36 – D’s failure to account for objects, substances or marks / S.37 – D's failure to account for his presence

• D must be given opportunity to consult a solicitor.

• Direction given to jury is long and complex.

S.35 – D elects not to give evidence at trial

• If D absconds during trial, judge ought not to direct jury that they are entitled to draw adverse inferences (Gough).

• S.35(1)(b) provides that no inferences should be drawn if physical or mental condition makes it undesirable to give evidence.

• Direction given to juries laid down in Cowan:

  • Burden of proof remains upon the prosecution throughout and what the required standard is;

  • The defendant has the right to remain silent;

  • An inference from failure to give evidence cannot on its own prove guilt;

  • Jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence.

  • Jury must be satisfied that D does not have an answer to the charge that would stand up to cross-examination.

• D will not be able to argue that there were tactical reasons to his not testifying, such as the exposure of his previous record (Becouarn).

• Example of direction not to draw inferences in Brown (Leroy).

Evidence obtained under compulsion

• Evidence obtained by coercion infringed Article 6 (Saunders v UK).

• Courts take violations of privilege against self-incrimination less seriously where less is at stake (O’Halloran compared to K(A)).

• If agent induces confession in a process that is the ‘functional equivalent of interrogation’, privilege will have been infringed (Allan v UK).

• The use of compulsory powers to locate and take possessions did not infringe Article 6 (A-G’s Reference (No 7 of 2000)).

The decision to prosecute

• Two ways to commence a prosecution:

  • Lay information before a magistrate.

  • Charge a suspect with an offence.

• Alternative to prosecution:

  • Cautions.

    • Apply only to adults.

    • Confession needed as precondition (Thompson).

  • Reprimands and warnings (Crime and Disorder Act 1998) for juveniles.

    • Conditions set out in s.65(1) CDA.

  • Conditional cautions.

  • Fixed penalty notices.

• Code for Crown Prosecutors lays down Full Code Test to determine when prosecution should lie.

  • Is there a realistic prospect of conviction?

    • More than 50% (Gujra).

  • Is bringing a prosecution in the public interest?

    • Held in Purdy that guidance as to assisted suicide not clear enough.

    • But majority in Nicklinson held that some discretion needed.

• Threshold test applied if Full Code cannot be applied:

  • Does current evidence give rise to reasonable suspicion that the suspect committed the offence?

  • Reasonable grounds for believing that the evidence gathered in a reasonable period of time will establish a reasonable prospect of conviction?

• If test not applied properly, can argue abuse of process or seek judicial review (but Wednesbury standard will be tricky to show).

• Special factors to consider:

  • Does court have jurisdiction?

  • Is offender entitled to immunity?

  • Can the prosecution be commenced in time?

    • Information for summary offence must be laid down within 6 months of its commission (s.127 Magistrates’ Court Act 1980).

  • Is any consent required? (E.g. from DPP or AG)

• In Gujra, CPS took over private prosecution to discontinue it as there was no ‘realistic prospect’ of conviction.

  • Stark argues that this diminishes the point of private prosecutions. If they are only allowed to proceed if there is ‘realistic prospect’ of conviction, CPS are recognising that the state ought to be prosecuting if it is within the public interest.

• If abuse of process found, no prosecution can occur; but prosecutor only has to reassess decision if judicial review succeeds (Manning).

Abuse of process

• Two cases where court will exercise power to stay proceedings (Beckford).

  • Accused could not receive a fair trial.

  • It would be unfair for the accused to be tried.

• Can there be a fair trial if jury is properly directed (West)?

• Time delay:

  • A stay only granted if D prejudiced (Bell).

  • Question of reasonable time under Article 6 needs to take into account complexity of the case (Howarth v UK).

  • In sexual offence cases of serious time delay, principles in A-G’s Reference (No 1 of 1990) should be followed.

    • D has to establish that he would suffer serious prejudice that no fair trial could be held.

    • Can be due to complexity of the case.

• Promises made to D:

  • In Jones v Whalley, D prosecuted despite promise that he would not be. Held that this was an abuse of process.

    • But CPS can now say that ‘someone else’ can prosecute you, therefore allowing for private prosecutions.

  • You have to act detrimentally on the promise (Killick).

• Abuse of executive power:

  • In Mullen, security services avoided extradition proceedings. Held to be abuse of power.

  • Cases of entrapment where exceptional opportunity provided (Loosely).

  • Even if executive misconduct ‘but for’ cause of confession, this will not be determinative (Maxwell).

    • Restrictive approach to abuse of power.

    • Seriousness of crime can be considered.

• If prosecution go against a published policy (Bennett).

  • Stark argues that such policies should be better advertised.

• O’Connor argues that courts in cases like Warren and Maxwell have weighed factors such as the seriousness of the offence to allow prosecution despite executive misconduct. Too much judicial discretion.

Pre-trial disclosure

• Prosecution has common law duty to disclose material of relevance regardless of whether they intend to rely on it or not.

• S.3 Criminal Procedure and...