ADVERSE INFERENCES AGAINST THE DEFENDANT

DEFENDANT'S SILENCE

Silence upon Being Questioned

s34 Criminal Justice and Public Order Act 1994 (“CJPOA”)
Where evidence is given that Defendant did not disclose a fact when:
 questioned under caution (not yet charged), or
 charged with offence/informed might be prosecuted,
The court/jury may draw such adverse inferences from the failure as appear proper when:
 determining whether there is a case to answer, and
 determining whether Defendant is guilty of the offence.

Q1:Can Inferences be made?

Duty to Disclose Defence
Defendant has a duty to disclose his defence when questioned
But duty is not absolute – failure to disclose defence will only lead to adverse inferences if it was
unreasonable

Timing
Inferences apply when failure in:
 interview before charge
◦ duty not to cease interview until Defendant “has said all wishes to say”
 upon being charged
If interview excluded – may nonetheless be adverse inferences by Defendant's failure to mention
fact when charged (even though may have mentioned it in the excluded interview)

Where Interviewed
If Defendant interviewed at PS – no inferences if not given opportunity to consult a solicitor (no
matter why)

Q2: Did Defendant fail mention a Fact later relied on in Court?

Fact later relied on in Court

“Fact” - broad meaning – any fact/issue put forward as part of Defence case
Question: Could he reasonably have been expected to advance the “fact” earlier?
Relying on a Fact
Defendant “relies on a fact” when:
 Defendant gives evidence of that fact, or
 Defence counsel put a specific/positive case to Prosecution Witnesses (not where just
testing Prosecution evidence)
Importance of Fact
For trial Judge to determine whether the (unmentioned) fact is sufficiently important to amount to
Defendant “relying on” it.

Q3: Was the Failure/Omission to Mention the Fact “Unreasonable”?

s34 – Unmentioned fact must be “a fact which, in the circumstances existing at the time, Defendant
could reasonably be expected to have mentioned.”

If Defendant has a reason/explanation for omission must:

 Present reason/explanation to Jury, and
 Direct Jury to consider whether:
◦ It accepts that this was the genuine reason for the omission, and
 If not:
◦ Is there any other explanation for the omission which is commensurate with Defendant's
innocence? Or
◦ Is the only explanation that Defendant was guilty.

Legal Advice
Where Defendant omits the fact due to legal advice, Jury must consider whether:
 The genuine reason for Defendant's omission was the legal advice given,
◦ Question: did Defendant genuinely and reasonably rely on the advice?
◦ Consider: circumstances of advice and personality of Defendant (not concerned with
correctness of advice)
 If not:
◦ Is there any other explanation for the omission which is commensurate with Defendant's
innocence? Or
◦ Is the only explanation that Defendant was guilty.

Evidence of the legal advice may be adduced by:

 Evidence of Defendant – not hearsay as not tendered to prove truth of advice, only that it
was given, or
 Legal adviser's oral evidence.
If Defendant/Legal adviser only gives evidence that the advice to stay silent was given – legal
advice privilege is not withdrawn
But if Defendant/legal adviser gives evidence of the reasons for the advice – legal advice privilege
is withdrawn
 unless allegation of recent fabrication – Defendant had no choice but to adduce reasons –
no waiver of privilege.

Effect of Omission
If conclude Defendant unreasonably omitted to mention a fact later relied on in Court – may draw
such adverse inferences as appear proper
Trial Judge should direct Jury on what inferences might be drawn in each case.

Direction
When Required
Judge must direct Jury when:
 Judge concludes that Defendant relied on a fact, and
 Jury conclude Defendant's failure to mention it in questioning was unreasonable

Not when Prosecution has not sought to rely on s34 – Judge should not invite Jury to consider
making adverse inferences (and, therefore, give the direction) without speaking to counsel first.

The Direction
Judge should identify the fact(s), not mentioned, which Defendant has relied upon
Jury must be directed that:
1. Defendant is not bound to answer police questions,
2. An inference from silence cannot prove guilt on its own
3. Prosecution must have established a case to answer before any inference can be drawn
4. For Jury to decide whether the failure was unreasonable – If decide it was they may, not
must, draw inferences against Defendant, and
 Judge should identify any reasons given by Defendant for the failure -
◦ Satisfied this was not the genuine reason for the omission?
◦ Any other explanation commensurate with Defendant's innocence?
◦ Only explanation Defendant's guilt?
5. Can only draw such inferences if satisfied that Defendant's silence was because he had no
reason which would stand up in court.
If multiple Defendants – give the direction for each Defendant separately.
 Direction when Defendant given Conflicting Explanations (Lies & Silence)
Where Defendant lies in interview, then gives another explanation at trial – he has both lied and
omitted to mention fact(s) later relied on.
Modified Lucas Direction (lies) or s34 direction (silence) would be appropriate

Counterweight Direction
s34(3) CJPOA - Subject to any directions by the court, evidence tending to establish the failure
may be given before or after evidence tending to establish the fact which the accused is alleged
to have failed to mention.

Necessary where:
 “no comment” interview adduced as part of Prosecution evidence (under s34(3)), and
 Defence case does not then “rely on” unmentioned fact.

No s34 Direction.
Counterweight Direction: Jury should not use Defendant's silence against him.
 Judge should consider whether any real risk Jury will draw an adverse inference if no
direction given.
 Must ensure that Jury is warned of Defendant's right to remain silent.

Common-Law Inferences
Only possible if Defendant fails to answer Questions and:
 has not been cautioned, and
 Defendant and interviewer are on equal terms

Police Officer/Equivalent not on equal terms with Defendant.

Main Application: Where person interviewing/accusing Defendant is a member of the public.

Horne – Victim accused Defendant of crime in presence of Police Officers, Defendant did not
respond – Common-law inferences correctly directed.

Silence upon Confrontation about Particular Types of Incriminating Evidence/Presence at

Crime-Scene
Court may make adverse inferences from Defendant's silence on being confronted with particular
types of evidence.
The evidence (incriminating mark/object/presence) is admissible in its own right.

Conditions:
 Defendant has been arrested (silence in interview), and
 Defendant is given “special warning” given of effect of failure to explain the incriminating
evidence.
Unless – Interview in PS/authorised detention centre and Defendant has requested to see a
solicitor and this has been denied (for whatever reason) – no inferences

Also applies to questions by customs and excise officers.

1: Incriminating Evidence
s36 CJPOA – Where Defendant is arrested and there is:
 on his person/clothing/footwear/otherwise in his possession/in place where he was arrested
 any object, substance, mark or mark on an object
s37 – Defendant arrested after being found by a Police Constable at/about the time offence
committed

2: Reasonable Belief attributable to Defendant's Participation in Specified Offence

the Police Constable/investigating Police Constable reasonably believes that the presence of the
object/substance/mark may be attributable to Defendant's participation in the commission of an
offence specified by the Police Constable

the Police Constable/another Police Constable reasonably believes Defendant's presence may be
attributable to Defendant's participation in the commission of the offence

3: Inform Defendant of Belief + Special warning

And the Police Constable informs Defendant of his belief and requests an account of the
object/substance mark/presence at place
 Special warning: Must explain suspicion + reasons + effect of failure to explain
◦ do not have to identify precise offence

4: Defendant is Silent
And Defendant fails to give an account

5: Appropriate Inferences if Evidence (of the object/substance/mark) is adduced

If: evidence of those matters (the object/substance/mark/presence) is adduced
Then: the court may draw such adverse inferences from Defendant's silence as appear proper
 DEFENDANT'S LIES

Governed by common-law
Lie generally admissible as original evidence
 Original evidence – out-of-court statement admitted for falsity of contents – to prove
statement was made (not that facts stated are true)

Q1: Did Defendant lie?

“Defendant's” Lie
Rule: Lie must be said by Defendant
Exception: Where A Lies in Defendant's presence and Defendant adopts the lie.
Direction: Judge must direct Jury that they can only use A's lie, made in Defendant's presence, as
evidence against Defendant if:
 The question (which elicited the lie from A) called for a response from Defendant, and
 By Defendant's reaction to A's lie, he adopted the answer made.

Must only be put to jury if there is sufficient evidence for a reasonable jury to conclude that
Defendant had adopted the lie.

Q2: Is a Lucas Direction Necessary?

Only required where the lie is directly relevant to a matter-in-issue (offence charged)
Principle: Direction required when there is a danger that the jury may consider Defendant's lie as
probative of his guilt
Situations where lie is directly relevant to a matter-in-issue (Burge - not exhaustive)
 Where Defendant raises alibi defence,
 Where Judge has directed jury to look to possible lie as corroborating evidence for a
Witness
◦ eg. ID evidence
 Where Prosecution has sought to rely on the lie as evidence of Defendant's guilt
 Where Prosecution has not explicitly sought to rely on the lie as evidence of Defendant's
guilt, but there is a real danger that the jury will do so.

Situations where no Direction necessary

Cases where, if Jury reject Defendant's account (conclude he is lying), will have no choice but to
convict.

Unclear whether Direction necessary

Duty of Defence Counsel to raise need for direction
  otherwise unlikely to be successful appeal as Defendant counsel best-placed to identify the
need and, if do not, it is unlikely to render the conviction unsafe.
Judge and Counsel should consider whether Direction needed before Judge's summing-up

LUCAS DIRECTION
Jury must be directed that, in order for the lie to be used as evidence against Defendant,
the alleged lie must be:
 Said deliberately
 Concerned with a material issue in the case
 Motivated by a realisation of guilt and fear of the truth
 In appropriate cases – Remind Jury that sometimes people lie, not from a sense of guilt but,
for example, in an attempt to bolster a just cause or out of shame or out of a wish to conceal
disgraceful behaviour from their family.
 Shown to be untrue

DEFENCE FAILURE TO DISCLOSE

Duties to Disclose
Defence Statement
s5 CPIA 1996 – Defendant under obligation to disclose defence by Defence Statement (in Crown
Court)
 Sets out in general terms the nature of Defendant's defence, matters in Prosecution case
takes issue with and basis of the dispute (s6A)
 must include details of alibi Witness.
 time-limit:
◦ Crown Court - within 28 days beginning with day Prosecution complies with primary
disclosure
◦ Magistrates Court: within 14 days

Defence Witnesses
s6C CPIA 1996 – Defence duty to identify any Witnesses intending to call
 time-limit:
◦ Crown Court: within 28 days beginning with day Prosecution complies with primary
disclosure
◦ Magistrates Court: within 14 days
Failure to Comply
If Defendant:
 Does not give a Defence Statement (Crown Court)
 Gives a Defence Statement late (Crown Court and Magistrates Court),
 Fails to give an updated Defence Statement (if required) or gives it late,
 Runs a defence at trial inconsistent with Defence Statement,
 Seeks to establish an alibi without complying with alibi Witness requirements,
 Gives Witness notice late, or
 Calls Witnesses at trial not contained in Witness notice

Court/Jury may draw such inferences as appear proper

Not when deciding whether there is a case to answer.

Direction:
Judge should ensure direct Jury on the failure and any reason/explanation given for it.

Where Defendant claims Defence Statement did not Reflect his Instructions
s6E(1) Criminal Procedure and Investigations Act 1996 (“CPIA”)– Rebuttable presumption that a
Defence Statement, which solicitor purports to give on Defendant's behalf, is given with
Defendant's authority.

DEFENDANT'S FAILURE TO TESTIFY

s35 CJPOA 1995
Unless:
 Defendant's guilt is not in issue, or
◦ eg. Newton hearing
 It appears to the court that, due to his mental/physical state, it is undesirable for him to
testify
◦ must be evidence that Defendant's physical/mental condition makes it undesirable for
him to testify
◦ if court rejects medical evidence that undesirable for Defendant to testify – may
nonetheless take that evidence into account when assessing the reliability of any
evidence given by Defendant
▪ ie. if he does then testify

At the end of the Prosecution case, Court will inform Defendant (in presence of jury) that:
 He can give evidence, but
 If he does not give evidence or if, having been sworn, he refuses to answer any questions
without good cause
it will be permissible for the court/jury to draw such inferences as appear proper from this
failure/refusal
 when deciding Defendant's guilt (not case to answer – too late)
and Prosecution may comment on Defendant's failure/refusal.

Therefore if:
 Defendant refuses to give evidence and is warned of the possible inferences, or
 Defendant agrees to give evidence, takes oath, then refuses to answer any Prosecution
questions
Adverse inferences may be made.

Unless the failure/refusal is justified:

 on the grounds of legal privilege
 because another statute excludes evidence which would be contained in the answer (eg.
hearsay), or
 because the court rules that the question need not be answered.

The Direction
Direction to Jury should contain:
 Defendant has a right not to give evidence – but has been warned that failure to do so may
lead to adverse consequences
 Failure to give evidence cannot prove guilt on its own
◦ Jury must consider the evidence against Defendant before considering his failure to
testify/answer Question.
◦ Jury must find a prima facie case against Defendant before can draw any inferences
from his failure to testify/answer Question.
 But failure can assist in deciding whether Defendant is guilty
 If a reason for not testifying has been given, then:
◦ if Jury accepts it – cannot draw inferences,
◦ if Jury rejects it – may draw inferences but not obliged to do so
 If Jury concludes that the only sensible explanation for Defendant's decision not to give
evidence is that he has no answer to the case against him (or none that'd stand up to XX)
then it is open to the Jury to hold his failure to give evidence against him
 It is for the Jury to decide whether it is fair to do so.

Direction not appropriate where there is no factual issue in the case (eg. only legal issues)

FAILURE TO CALL EVIDENCE

Common-law: Permissible for Judge to comment on Defendant's failure to call a particular Witness
6. Judge should exercise care before doing so
7. Comments should not invite court to equate failure to call the Witness with Defendant lying
No comment should be made where there is a valid reason for not calling the Witness

Spouse
 s80A PACE – Prosecution cannot comment where fails to call spouse.
 However Judge may (with great care).