Adverse Inferences

• Introduction
• Section 34 of the Criminal Justice and Public Order Act (CJPOA) 1994
• Sections 35 to 37 of the CJPOA 1994
• Section 35
• Physical and mental condition of the Defendant
• Specimen judicial directions
• Sections 36/37
• Section 38 of the CJPOA 1994: Interpretation and Savings
• Failure to testify when charged with Section 5 of the Domestic Violence, Crime and Victims Act (DVCVA) 2004
• The six necessary conditions prior to an adverse inference being drawn in circumstances where there has been a failure to mention a relevant fact when questioned
• Pre-interview Disclosure
• Legal Advice to be Silent
• The Defendant waiving Legal Privilege
• Prepared and self-serving statements: Practice and procedure
• Procedure

Introduction

This chapter provides important guidance on the law and practice surrounding adverse inferences from a Defendant's silence in certain circumstances. It is important that Prosecutors are familiar with the legal framework surrounding the drawing of adverse inferences from silence, when such inferences should be sought and the effect that these can have in supporting a prosecution case.

The relevant provisions are set out in the Criminal Justice and Public Order Act (CJPOA) 1994. In particular:

• Section 34 sets out the effect of the Defendant's failure to mention facts when questioned or charged;
• Section 35 sets out the effect of the Defendants silence at trial;
• Section 36 sets out the effect of the Defendants refusal or failure to account for objects, substances or marks;
• Section 37 sets out the effect of the Defendants refusal or failure to account for his or her presence at a particular place; and
• Section 38 sets out the interpretation of the provisions.

Section 34 of the Criminal Justice and Public Order Act (CJPOA) 1994

Section 34 allows an inference to be drawn if a suspect is silent when questioned under caution prior to charge and subsequently relies upon a relevant fact at Court, which he or she could reasonably have been expected to mention when questioned. Just because a suspect declines to answer questions, does not automatically mean that an adverse inference can be drawn. It is only when he or she later seeks to put forward an account or explanation that the adverse inference provision is triggered.

In Webber [2004] 1 All ER 770, the House of Lords held that the word "fact" as given in Section 34 should be given a broad meaning. It covered any alleged fact which was in issue and put forward as part of the defence case. Therefore, a specific case put by a Defendants advocate to a prosecution witness can be a fact relied on, even if the Defendant does not give or call evidence.

In M [2012] 1 Cr App R 26, it was held that the judge had incorrectly allowed the jury to draw an adverse inference from a failure by the appellant to mention relevant facts in interview when there was no basis for drawing one. There, the officers who interviewed the appellant mistakenly asked him about the alleged rape on the wrong date. The appellant subsequently relied on facts relevant to the date that the alleged rape was said to have occurred. The Court found that it was difficult to see how in those circumstances the appellant could have reasonably been expected to say more.

In Lee [2015] EWCA Crim 420, it was held that the judge had correctly allowed the jury to draw adverse inferences from the Defendants silence in interview following his arrest for an assault on his partner. Although the police did not have the specific details of the allegations at that stage, the questions were clearly directed to trying to discover whether or by whom the partner had been assaulted.

Prosecutors should be mindful that an adverse inference may only be drawn where questions have been put. It was held in Johnson [2005] EWCA Crim 971 that this section does not apply to a suspect who refused to leave his cell to be interviewed. However, the position would have been different if the police had asked questions in the cell.

An inference can also be drawn when a Defendant is silent on charge (Section 34(1)(b)) but subsequently relies upon a relevant fact at Court which he or she could reasonably have been expected to mention when questioned.

These subsections are distinct. In Dervish and Anori [2001] EWCA Crim. 2789, the trial judge had ruled that the Defendants' no comment interviews were inadmissible, but had directed that the jury may draw an adverse inference from silence at charge, in accordance with Section 34(1)(b). At the Court of Appeal, the Defendants had argued that this approach was wrong as the two limbs of Section 34 were inextricably linked. The Court of Appeal rejected this argument and approved the judge's approach.

Prosecutors should be mindful of reminding the Court of its ability to draw an adverse inference under one or both of the provisions, where appropriate.

Prosecutors are reminded to scrutinise the case and to seek an adverse inference direction, only where the merits of the individual case requires it.

Section 34 does not apply simply because the accused has declined to answer questions. (See the case of Argent [1997] 2 Cr App R 27).

The Court of Appeal approved the statement of the trial judge in Brizzalari [2004] EWCA Crim 310, that the mischief at which the provision was primarily directed was the positive defence following a "no comment" interview and/or the "ambush defence".

See also the case of Johnson [2017] EWCA Crim 191, where the Court of Appeal held that it would have been wiser to avoid giving a Section 34 direction in this case as the Defendant had, in interview, set up the line of reasoning upon which he later relied upon although some points of detail were missing.

In R. v. Harris (Henricko) [2016] 1 Cr.App.R. 4, the Court of Appeal held that the judge was correct not to give a Section 34 direction where the prosecution had submitted that they were not suggesting an adverse inference but were only seeking to use the inconsistencies in the Defendant’s accounts as matters going to credit.

Sections 35 to 37 of the CJPOA 1994

Section 35

Section 35 allows an inference to be drawn when a Defendant is silent at trial. However, this section prevents an inference from being drawn when it appears to the Court that "the physical or mental condition of the accused makes it undesirable for him to give evidence."

The court is required to satisfy itself that the defendant is aware that the failure to give evidence or to answer questions without good reason may lead to inferences being drawn against him or her.

Physical and mental condition of the Defendant

Prosecutors are reminded that there might be circumstances in which it might not be reasonable to expect the defendant to mention facts in question. Special care should be taken when considering cases involving vulnerable defendants such as youths or those with mental heath issues within this context.

In determining whether an adverse inference should be drawn, the Court of Appeal in the case of R v Howell [2003] Crim L.R. held that the kind of circumstance which may most likely justify silence will be such matters as the suspect's condition (ill-health, in particular mental disability; confusion; intoxication; shock etc).

Specimen judicial directions

In R v Cowan [1996] Q.B. 373, the Court of Appeal expressed approval of the specimen directions issued by the Judicial Studies Board where the Defendant chooses not to give evidence in his or her defence in the Crown Court.  The Court highlighted the importance of these steps, prior to a Section 35 adverse inference being drawn:

1. The judge must tell the jury that the burden of proof remains upon the prosecution throughout and what the required standard is.
2. The judge must make clear to the jury that the Defendant has the right to remain silent and that it is his or her choice;
3. An inference from failure to give evidence cannot, on its own, prove guilt;
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. The jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case; and
5. If, having considered the defence case, the jury concludes that the silence can only sensibly be attributed to the Defendant's having no answer or none that would stand up to cross-examination; they may draw an adverse inference.

In R v Becouarn [2005] UKHL 55, the House of Lords held that a jury did not have to be directed that there might be reasons for not giving evidence other than the inability to give an explanation or answer the prosecution case.

For guidance on the Court procedure where the Defendant declines to give evidence, please refer to the Criminal Practice Direction VI Trial 26P.1 - 26P.5: Defendants right to give or not to give evidence.

Sections 36/37

Section 36 allows an inference to be drawn when a person fails or refuses to account for objects, substances or marks found:

• On his person
• In/on his clothing or footwear
• Otherwise in his possession; or
• In any place at the time of his arrest

An investigating officer must reasonably believe that the presence of such a mark, or substance or object may be attributable to that person's participation in the commission of an offence specified by the officer.

Section 37 allows an inference to be drawn when a Defendant fails or refuses to account for his presence at a particular place where it is believed that he may have committed an offence.

Section 38 of the CJPOA 1994: Interpretation and Savings

Section 38 defines "legal representative" and "place".

Reference to "offence" includes any other offence of which the accused could be convicted on that charge, i.e. alternative charges as permitted by Section 6(3) and 6(4) Criminal Law Act 1967. Refer to Drafting the Indictment , elsewhere in the Legal Guidance.

It is important for Prosecutors to note Section 38(3), which prevents a Defendant being convicted (or committed or sent) solely on the basis of an adverse inference drawn from a silence. There must be a prima facie case against the defendant - R v Cowan [1996] Q.B. 373.

Failure to testify when charged with Section 5 of the Domestic Violence, Crime and Victims Act (DVCVA) 2004

Section 6 and 6A of the DVCVA 2004 provides for inferences to be drawn where a person fails to testify when charged with an offence under Section 5 of that Act (causing or allowing a child or vulnerable adult to die or suffer physical harm).

In the case of Quinn [2017] EWCA Crim 1071, the trial judge had said to the jury "they do not have to give any account but you may think they could and chose not to and you have every right to ask why". The Court of Appeal held that these comments relating to the Defendants failure to give any account when interviewed about the events leading to the death of the victim were reasonable in the circumstances and not unduly prejudicial.

For further information on the Section 5 offence, see the legal guidance on Homicide: Murder and Manslaughter

The six necessary conditions prior to an adverse inference being drawn in circumstances where there has been a failure to mention a relevant fact when questioned

In R v Argent [1997] 2 Cr.App.R. 27, the Court of Appeal was asked to determine whether the trial judge had erred in law by failing to exclude the evidence of the appellant's second interview with the police.

Lord Bingham set out the six formal conditions that must be satisfied before an adverse inference can be drawn in circumstances where there has been a failure to mention a relevant fact when questioned.

• There must be proceedings against a person for an offence;
• The alleged failure to mention a fact at trial must have occurred before a Defendant is charged;
• The alleged failure must have occurred during questioning under caution by a constable.
• The questioning must have been directed to trying to discover whether or by whom the alleged offence was committed;
• The alleged failure of the accused must have been to mention any fact relied on in his defence in those proceedings;
• The alleged failure must have been to mention a fact which, in the circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned.

When Section 34 of the CJPOA 1994 applies, such inferences may be drawn from the silence as appear proper to a court or jury in determining whether the accused is guilty of the offence charged. Section 34 can also apply in determining applications to dismiss charges or that there is no case to answer

Pre-interview Disclosure

As noted above, no adverse inferences can be drawn if the facts were not known to the Defendant at the time when "he failed to disclose them" at interview/charge.

Under the Criminal Procedure and Investigations Act 1996 the investigator is under no obligation to reveal the prosecution case to the suspect or their legal representative before questioning begins. However, the Court of Appeal has held in R v Argent [1997] 2 Cr App R 27, R v Imran and Hussain [1997] Crim L.R. 754 CA and R v Roble [1997] CLR 346, that if the police disclose little or nothing of the case against the suspect, so that a legal advisor cannot usefully provide advice to their client, then this may be a good reason for the solicitor to advise the suspect to remain silent.

This means that the interviewing or investigating officer must disclose sufficient information to enable the suspect to understand the nature and circumstances of their arrest. However, there is no requirement for the police to present a prima facie case before questioning the accused or to give the defence solicitor a full briefing before questioning the suspect. Imran and Hussain [1997] Crim.L.R. 754, CA and Farrell [2004] EWCA Crim 597.

If the investigator feels that it is necessary to withhold information from the legal representative during a pre-interview briefing, they should be able to explain clearly the reasons supporting this approach in any future proceedings.

Prosecutors should be made aware of all pre-interview disclosure that takes place in order to assess whether an adverse inference may properly be drawn at trial and to anticipate, and prepare for, any defence arguments on the point. Prosecutors should be requesting this information if the police do not include it in the case papers or on the MG3. Assessing pre-interview disclosure in such a manner will enable the prosecution to present an accurate picture to the Court of the basis of the case and the supporting evidence that was made known to the suspect and his legal advisor at the time of interview. Such an approach will assist in rebutting defence assertions that the silence was reasonable in the circumstances. It can also help Prosecutors foresee likely lines that the defence may take and advise the police on further lines of inquiry.

Legal Advice to be Silent

To avoid the drawing of an adverse inference, some Defendants will state that they remained silent because they were advised to do so by their legal advisor. However, such a course will not necessarily avoid the application of Section 34 of the CJPOA 1994. In R v Hoare and Pierce [2004] EWCA Crim 784, the Court of Appeal held that when such an explanation is put forward, a jury should consider whether it was reasonable for a defendant to rely on such advice.

This principle was further developed in R v Beckles [2005] 1 WLR 2829, in which the Court of Appeal set out a two-stage test for juries to consider before drawing an adverse inference:

1. Did the Defendant genuinely rely on the legal advice, i.e. did they accept the advice and believe that they were entitled to follow it?
2. Was it reasonable for the Defendant to rely on the advice?

By way of example, a Defendant may be acting unreasonably if he relied on the legal advice to remain silent because he had no explanation to give and the advice suited his own purposes.

Reasonableness does not depend on whether the advice was legally correct or whether it complied with the Law Society's guidelines. (See R v Argent [1997] Crim.L.R. 449 CA and R v Roble [1997] Crim.L.R. 449, CA).

The Defendant waiving Legal Privilege

The inquiry into the reasonableness or otherwise of relying on legal advice may lead to the Defendant's legal professional privilege being deemed to have been implicitly waived. As a result, the legal advisor who gave the advice may have to give evidence.

Privilege will not be waived if the Defendant merely gives evidence to the effect that he was advised to be silent. If the Defendant explains the reasons for the advice or the circumstances, then that could amount to a waiver of the privilege. R v Bowden [1999] 4 All E.R. 43.

Privilege will not be waived if a legal advisor is called to rebut an inference of subsequent fabrication, by giving evidence that the fact was communicated to him by the Defendant at or about the time of the interview.

If privilege is waived, then the prosecution can ask questions of the Defendant and the legal advisor (if called) to discover whether such advice was given for tactical reasons. These could include the nature and content of the advice as well as the reasons for given it - R v Condron and Condron [1997] 1 W.L.R. 827.

Whether privilege has been waived will depend on the facts of each case, and where appropriate, should be raised in the absence of the jury.

Prepared and self-serving statements: Practice and procedure

To avoid the drawing of an adverse inference, some Defendants will read out a pre-prepared statement and then refuse to answer any further questions. In some cases, it will be the legal advisor who reads out the statement.

An adverse inference cannot be drawn against a Defendant who merely refuses to answer police questions after a pre-prepared statement is read out. R v Knight [2003] EWCA 1977 and R v Turner (Dwaine) [2004] EWCA Crim 3108.

Nor can an adverse inference be drawn if the Defendant gives evidence at trial that is completely consistent with his pre-prepared statement. R v Knight [2003] EWCA 1977 and R v (1) Ashgar Ali (2) Liaqat Ali (3) Sarfraz Ali [2001] EWCA Crim 683.

However, it is important for Prosecutors to note that an adverse inference can be drawn if the Defendant gives evidence that is inconsistent with the statement or mentions a fact which at the time of the interview, it would have been reasonable to include in the pre-prepared statement. In R v Knight [2003] EWCA 1977, Laws LJ stated:

"We wish to make it crystal clear that of itself the making of a pre-prepared statement gives no automatic immunity against adverse inferences under Section 34."

Prosecutors are advised not to serve the interview containing the pre-prepared interview as part of Crown’s case, especially if the statement is very full, so that there is a doubt as to whether a court could properly draw an adverse inference. Rather, it should be viewed as a self-serving statement and therefore, inadmissible. A self-serving statement is a statement by an accused, which is wholly exculpatory, and the admission of which is sought in order to prove the truth of the contents therein. Moreover, in R v Pearce 69 Cr.App.R 365 CA, it was held that self-serving statements which are prepared by suspects and handed to the police with a view to it becoming part of the prosecution case eventually, should be excluded by the judge at trial (pages 369-370 of the judgement).

Procedure

Evidence of the failure to mention the fact in questions can be given either before or after evidence has been given which tends to establish the fact. Initially, the prosecution should normally just state that the defendant, after being cautioned, did not answer questions. If and when he gives evidence and mentions facts which in the view of prosecution counsel he could reasonably have been expected to mention in interview, he can then be cross-examined as to why he did not mention them in interview.

The issue is normally put before the judge in the absence of the jury at the conclusion of all the evidence. If the judge rules that no adverse inference can be drawn, they will have to expunge the cross-examination from their memory.