Inferences from the defendant.docx

***[Inferences from the defendant's silence and other conduct -- 3 Q's]*** *The following are the specific statutory provisions with which students should be familiar (and able to refer to by section number): sections 34, 35, 36 and 37 Criminal Justice and Public Order Act 1994.* *The following is...

***[Inferences from the defendant's silence and other conduct -- 3 Q's]*** *The following are the specific statutory provisions with which students should be familiar (and able to refer to by section number): sections 34, 35, 36 and 37 Criminal Justice and Public Order Act 1994.* *The following is the specific leading case authority with which students should be familiar (and should be able to refer to by name): Lucas.* Lies told by the accused, on their own, do not make a positive case of any crime (Strudwick (1994) 99 Cr App R 326 at p. 331). However, they may indicate a consciousness of guilt and in appropriate circumstances may therefore be relied upon by the prosecution as evidence supportive of guilt -- D's lies to the police as to his whereabouts at the time of the offence were used in support of the identification evidence adduced by the prosecution. **In that case it was held that, whenever a lie told by an accused is relied on by the Crown or may be used by the jury to support evidence of guilt, as opposed merely to reflecting on the accused's credibility** a ***[Lucas]*** direction should generally be given to the jury -- - The jury should in appropriate circumstances be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. The **examples are not a magic formula to be deployed in every case regardless of the circumstances**. **Reference to them may be misleading, for example because shame may be an irrelevant consideration or there may be no relevant family**. The judge should concentrate particularly on any explanation that has been given for the lie, using general examples only if that will assist. a trial for murder in which the only issue was provocation and D admitted that he had lied in saying that he had never had any contact with V, it was held that **the jury should have been directed that the lies could support the case of murder only if they were sure that they were told to conceal the fact that D had murdered V, rather than merely to conceal his connection with the death, i.e. to avoid responsibility for deliberate murder rather than a provoked killing.** A murder trial in which there was evidence that **D had told many lies and had been involved in acts of concealment of the death, it was held that this evidence could be used by the jury to support an inference of murder**, provided that they were **cautioned that the evidence could be accounted for by the fact that V's death might have resulted from manslaughter.** **it was also held that a Lucas direction need not be given where it is otiose** i.e., where the **rejection of the explanation given by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic**. Nor, it seems, does a judge need to give a Lucas direction where the accused has offered an explanation for lies and the judge has dealt with that explanation fairly in the summing-up. ***[a Lucas direction is usually required in four situations -- ]*** 1. Where the **defence relies on an alibi**. 2. Where the 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. 3. Where the **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**. 4. Where **although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so**. The **Court of Appeal held that the direction (if given) should, so far as possible, be tailored to the circumstances of the case, but that it will normally suffice to make two points**: first that the **lie must be admitted or proved beyond reasonable doubt**, and secondly that the **mere fact that the accused lied is not in itself evidence of guilt since defendants may lie for innocent reasons**, so - [only if the jury are sure that the accused did not lie for an innocent reason can a lie support the prosecution case.] The Court also stressed that the need for the direction arises only in cases where the prosecution say, or the judge envisages that the jury may say, that the lie is evidence against the accused, in effect using it as an implied admission of guilt. The **direction is not needed in run of the mill cases where the defence case is contradicted by the evidence of prosecution witnesses in such a way as to make it necessary for the prosecution to say that, insofar as the two sides are in conflict, the accused's account is untrue.** direction is not required simply because the jury may reject the evidence of an accused about a central issue in the case, because that situation is covered by the general direction on the burden and standard of proof. ***[The Right to Silence -- ]*** An accused person in a criminal trial has traditionally been accorded a 'right to silence', sometimes termed a privilege against self-incrimination. Aspects of the right to silence which are recognised in domestic law are that the accused is not a compellable witness at trial (see F4.10) **and is under no general duty to assist the police with their inquiries.** **At common law, no inferences were generally permitted to be drawn from the exercise of the right to silence either by a suspect under investigation or by an accused person at trial. This position has been substantially eroded by the 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. Where the statutory scheme comes into play, the court is under an obligation to ensure that the jury are properly directed regarding the proper inferences which can be drawn. ECtHR accepted that the right to silence could not of itself prevent the accused's silence, in cases which clearly call for an explanation, being taken into account in assessing the persuasiveness of the prosecution evidence, but also stressed that a fair procedure (under Article 6) required 'particular caution' on the part of a domestic court before relying on the accused's silence. ***[Failure to reveal facts later relied in court -- ]*** A strong argument for drawing an adverse inference from silence occurs where the accused withholds when questioned matters that are subsequently introduced in support of a defence at trial. Section 34 of the CJPO 1994 addresses this problem. ***[S34 -- ]*** Where, in any proceedings against a person for an offence, evidence is given that the accused--- a. **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**; or b. on **being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact;** or c. 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**, **being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed**, as the case may be, subsection (2) below applies. Where this subsection applies--- a. \[repealed\]; b. a judge, in deciding whether to grant an application made by the accused under paragraph 2 of schedule 3 to the Crime and Disorder Act 1998; c. the court, in determining whether there is a case to answer; and d. the **court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper**. Where the accused was at an authorised place of detention at the time of the failure, **subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in subsection (1) above.** **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.** This **section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above 'officially informed' means informed by a constable or any such person.** This **section does not---** a. **prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section**; or b. **preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section.** This **section does not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this section**. The **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 **Section 34 applies also where the accused discloses the nature of the defence but fails to mention a particular fact that is relied upon at trial. In such a case there is a discretion whether to deploy s. 34.** D immediately disclosed his defence of self-defence, but neglected to mention that he believed V was armed with a hammer. The decision of the judge to proceed in a 'low key' way without giving a s. 34 direction was upheld. The **mischief at which s. 34 is primarily directed is 'the positive defence following a "no comment" interview and/or the "ambush" defence'.** Counsel should not complicate trials and summings-up by invoking the section unless the merits of the individual case require it. Court of Appeal said that **it would have been 'wiser to avoid' a direction where D had said enough in interview to 'set up the line of reasoning' on which his defence was based, although some points of detail were missing.** Failure to give a proper direction will not necessarily involve a breach of Article 6, nor render a conviction unsafe. the factors which persuaded the Court that D had received a fair trial included the strength of the evidence, the fact that his failure to mention relevant facts was not consequent upon legal advice (as to which, see F20.18) and the clear and accurate direction given on the related matter of D's failure to give evidence. **Decisions of the ECtHR have confirmed that the mere fact that a trial judge leaves a jury with the option of drawing an adverse inference from silence in interview is not incompatible with the requirements of a fair trial.** Whether the drawing of adverse inferences infringes the ECHR, Article 6, **is a matter to be determined in light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national court, and the degree of compulsion inherent in the situation.** Of particular importance are the terms of the judge's direction to the jury on the drawing of adverse inferences ***[What about access to legal advice? ]*** - **The Court considered that even the lawful exercise of a power to delay access to legal advice could, where the accused was at risk of adverse inferences under the statutory scheme, be sufficient to deprive the accused of a fair procedure under Article 6.** The accused was faced with a 'fundamental dilemma' at the outset of the investigation, in that silence might lead to adverse inferences being drawn, while breaking silence might prejudice the defence without necessarily removing the possibility of inferences being drawn. The dilemma is resolved by postponing the prospect that inferences will be drawn until the accused has had the opportunity of consulting with a legal adviser. The postponement occurs in exactly the same way whether access to legal advice is delayed lawfully or unlawfully. ***[S38 -- ]*** **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 such a failure or refusal as is mentioned in section 34(2), 35(3), 36(2) or 37(2).** A judge shall not refuse to grant such an application as is mentioned in section 34(2)(b), 36(2)(b) and 37(2)(b) solely on an inference drawn from such a failure as is mentioned in section 34(2), 36(2) or 37(2). Section 38(3) applies to all four of the provisions of the 1994 Act which operate to permit the drawing of inferences from silence, and s. 38(4) to the three appertaining to out-of-court silence. ***[What is the meaning of reliance? ]*** - **Section 34 of the CJPO 1994 does not apply where there is no attempt to put forward at trial some previously undisclosed fact** (e.g., where the defence simply contend that the prosecution have failed to prove their case). To give a s. 34 direction in a case where the accused has put forward no more than a bare denial would be tantamount to directing that guilt may be inferred directly from silence, which runs counter to the purpose of s. 34 D, acting on legal advice, declined to answer any questions, and at trial did not give or call any evidence. It was held that s. 34 did not bite in these circumstances. it was held to be wrong to direct the jury that D's decision to respond 'no comment' part-way through his interview might suggest that he had a 'sinister reason' sufficient to support an adverse inference without first identifying a specific fact that had been relied on. It goes too far, however, to suggest that s. 34 applies only where the accused gives evidence: **a fact relied on may be established by a witness called by the accused, or may be elicited from a prosecution witness.** A fact or matter is relied on not only where the accused gives or adduces evidence of it but also where counsel, acting on instructions, puts a specific and positive case to prosecution witnesses, as opposed to asking questions intended to probe or test the prosecution case. The effect of specific and positive suggestions from counsel, whether or not accepted, is to plant in the jury's mind the accused's version of events. This may be so even if the witness rejects the suggestion, since the jury may mistrust the witness's evidence. If the judge is in doubt whether counsel is merely testing the prosecution case or putting a positive case, counsel should be asked, in the absence of the jury, to make the position clear. However, the positive case ought to be apparent from the defence statement made in advance of trial. The same reasoning also led the House of Lords to conclude that the adoption by counsel of evidence given by a co-defendant may amount to reliance on the relevant facts or matters. It has been held that the putting forward by an accused of a possible explanation for his or her fingerprints being on a car number plate is a 'fact' as broadly construed in that case D's belief in the guilt of one or more named individuals of the crime with which he was charged was a 'fact'. ***[How to identify facts in directions? ]*** If the prosecution are unable to establish that the accused has failed to mention a fact, the jury should be directed to draw no inference. Where the judge directs the jury on the basis that s. 34 applies, it is important that the facts relied on should be identified in the course of the direction and should not be mixed with other, innocuous, facts from which no inference can be drawn. **The judge was allowed some latitude in a complex case in listing only those aspects of the defence case, as distinct from every particular fact**, that had not been mentioned. Subject to this qualification, the identification of the specific fact or facts is required. Any proposed direction should be discussed with counsel before closing speeches - In our view it is particularly important that judges should take this course in relation to directions as to the application of section 34. That section is a notorious minefield. Discussion with counsel will reduce the risk of mistakes. ***[What about prepared statements? ]*** **Where the accused at the relevant time gives a prepared statement in which certain facts are set forth, it cannot subsequently be said that there has been a failure to mention those facts.** The aim of s. 34 of the CJPO 1994 was to encourage a suspect to disclose the factual defence, not to sanction inferences from the accused's failure to respond to questions. A prepared statement may, however, be a dangerous device for an innocent accused who later discovers that something significant has been omitted. **As inconsistencies between the prepared statement and the defence at trial do not necessarily amount to reliance on unmentioned facts**, the judge must be particularly careful to **pinpoint any fact that might properly be the subject of a s. 34 direction**. Alternatively, the **jury might in appropriate circumstances be directed to regard differences between the prepared statement and the accused's evidence as constituting a previous lie rather than as the foundation for a direction under s. 34.** D had put forward a 'bland, nonspecific prepared statement' in interview and the judge's direction quite properly focused on the extent to which he might reasonably have advanced the more detailed defence that emerged at trial when first taxed with the matter. ***[Caution or charge? ]*** Inferences before a suspect is charged under the CJPO 1994, s. 34, may not be drawn except 'on being questioned under caution by a constable' (s. 34(1)(a)). The reference to 'constable' includes others charged with investigating offences (s. 34(4)). **If no questions under caution have been put, for example because the accused refuses to leave the cell for questioning, the section cannot apply, as the statutory language cannot be ignored.** It is not necessary that specific questions are put in interview: **a defendant is 'questioned under caution' if expressly or by necessary implication invited to give an account of the matter which has given rise to the interview.** Similarly, a fact does not have to be stated in answer to a question for it to have been 'mentioned' -- - D handed over a prepared statement in which the relevant facts were mentioned and this was sufficient to prevent an inference, although he subsequently declined to answer questions. ***[What facts should have been mentioned? ]*** If the accused gives evidence, the reason for failing to disclose should be explored and any explanation advanced by the accused for non-disclosure must be considered in deciding what inferences, if any, should be drawn. The jury was 'very much concerned' with the truth or otherwise of an explanation from the accused as, if they accept it as true or possibly so, no adverse inference should be drawn from the accused's failure to mention it. **Magistrates had fallen into error, inter alia, by failing to consider what D's explanation might be for not having co-operated in interview, despite having been invited to consider that he might have been protecting his brother**, who was the actual perpetrator. Court of Appeal r**ejected a criticism that the trial judge had failed to curtail cross-examination of D as to his reasons for failing to deal with specific matters**. Such cross-examination may be necessary to enable the judge to direct, and the jury to decide, on the inferences to be drawn from the failure. D was not asked at any point about his failure to answer questions at interview (where he had tendered a prepared statement). Nor does it appear that he was invited to deal with the question why he had made no previous mention of particular facts later relied on in his defence. Although counsel for the prosecution did not seek a direction on adverse inference, the trial judge elected to give one. The Court of Appeal (at \[8\]) considered the direction to be both wrong and unfair in the circumstances. '\[**T\]he jury were invited to consider an adverse inference without knowing what if anything the appellant might have had to say about his silence.' Ultimately an adverse inference is appropriate only where the jury conclude that the silence can only sensibly be attributed to the defendant's having no answer, or none that would stand up to questioning.** D's contention was that he thought that he had mentioned the fact in issue during his interview. **As this was not advanced as a reason for non-disclosure, it was said that it provided no impediment to the drawing of an adverse inference. While this may be so, if D genuinely believed that he had mentioned the fact, then his state of mind at interview was not that of a guilty person withholding information**. It is important that any direction given should reflect this. D's only chance to mention a fact was when a witness's statement had been read to him in interview. He had not been told that he should correct any statement with which he disagreed. It was held that it would be 'wholly unsafe' to seek to draw an adverse inference since D had never had the opportunity to deal with the matter (which was not central) even if he ought to have identified it as something that was important enough to mention. Officers interviewing D on suspicion of rape mistakenly attributed a date to the allegation that was some three months after the day on which the complainant, D's babysitter, had said that the offence had occurred. **D had responded truthfully that nothing had occurred on the date put to him and 'it was hard to see how in those circumstances he could have been expected to say more'. D subsequently relied on facts relevant to the earlier date (e.g., the fact that his partner had arrived home very shortly after the alleged incident) but these were not facts which he could reasonably have been expected to mention in the context of the original investigation.** The **specific references to the accused and to the circumstances indicate that a range of factors may be relevant to what might have been expected to be forthcoming, including the accused's age, experience, mental capacity, health, sobriety**, tiredness and personality. A restrictive approach would not be appropriate. **Court of Appeal drew a contrast between a straightforward case where facts could be expected to be mentioned (such as Argent itself, which concerned a fatal stabbing where D had been identified by eye-witnesses) and a fraud or conspiracy** with more complex interlocking facts, where it might not be expected that an immediate response would be forthcoming. - D sought to rely on this distinction, having been interviewed in connection with conspiracy to commit fraud against the purchasers of solar panels marketed by him. It was alleged that false promises had been made to purchasers, and the defence was that D believed that the promises were true. **His failure to mention this at interview was held not to fall within the class of case envisaged in Argent because D had been given adequate disclosure before interview and 'had lived through events': he knew what promises had been given, and the level of investments that had been made in order to meet them**. It was therefore a case where the jury could be invited to consider drawing an inference under the CJPO 1994, s. 34. A crucial issue was whether the finding of D's DNA on a home-made explosive device might have been attributable to innocent indirect transfer. The agreement between the experts in the case was unnecessarily broad in that it included an observation that it was 'not realistic' to expect anyone to be able to account for indirect transfer. **In light of that agreement the Court of Appeal observed that it was hard to see how it could have been argued that such an explanation could have been expected from D at interview, whereas in fact there are many circumstances where it may be reasonable to expect individuals to put forward a case in relation to the presence of their DNA: not because they can be expected to analyse the science or the detailed material on which the scientific conclusions were based, but because they would be aware of facts pointing to an alternative explanation**. The Court was 'sceptical' as to whether it was wise to reach an agreement between experts in such broad terms. **The failure of the interviewer to disclose relevant information when asked to do so by the accused or a legal adviser is another factor bearing upon the propriety of drawing an inference**. If little information is forthcoming, a legal adviser may well counsel silence until a better assessment of the case to answer can be made. a s. 34 direction was called for in respect of D's failure to mention at interview that C had made up her allegation of assault against him, and that her injuries had been caused in another way**. It was not necessary for the judge to point out that D had not, at that stage, been made aware of the specific allegations made by C as he would have been aware of the salient fact that he had been arrested for assaulting her.** **where D was invited to respond to a narrative rather than being asked specific questions, the issue whether D might reasonably have been expected to go further than simply explaining his defence 'in broad terms' was one to which the jury's attention should have been specifically directed.** **the issue was not what questions had been asked, but whether D could reasonably have been expected to mention a fact when questioned**. There was no requirement that the unmentioned fact was one about which the accused had specifically been asked a question. In both cases, prepared statements had been relied on, and the defendants had declined to answer further questions for the remainder of the interviews. **it was said that the jury were entitled to infer that the lengthy questioning would have descended to matters of detail, and the more central the facts that D failed to mention to the issues at trial, the stronger the inference that he might have been expected to mention them.** An **inference was properly open to the jury where D' s account at his trial for rape included a detailed account of events that D claimed had been withheld at interview following legal advice.** Evidence of the questions put to D was said to have been desirable but was not necessary on the facts. **Neither decision prevents D from arguing that lack of disclosure or failure to question on a particular matter was the reason for D' s failure to mention it, but the plausibility of such an explanation depends on the circumstances.** ***[Legal advice to remain silent -- ]*** D and his wife, admitted heroin addicts, were convicted of offences relating to the supply of the drug. At interview both remained silent, on the advice of their solicitor who (despite medical advice to the contrary) considered that their drug withdrawal symptoms rendered them unfit to be interviewed. At trial, the defence relied upon detailed innocent explanations of prosecution evidence which could have been put forward at the time of interview. It was held that the giving of legal advice to remain silent did not of itself preclude the drawing of inferences: **all depends on the view the jury take of the reason advanced by the accused as to whether the silence can only sensibly be attributed to the accused having no answer, or none that would stand up to questioning.** - **It is not the purpose of section 34 to exclude a jury from drawing an adverse inference against a defendant because he genuinely or reasonably believes that, regardless of his guilt or innocence, he is entitled to take advantage of that advice to impede the prosecution case against him.** In such a case the advice is not truly the reason for not mentioning the facts. [The section 34 inference is concerned with flushing out innocence at an early stage or supporting other evidence of guilt at a later stage, not simply with whether a guilty defendant is entitled, or genuinely or reasonably believes that he is entitled, to rely on legal rights of which his solicitor has advised him.] **Legal entitlement is one thing. An accused's reason for exercising it is another. His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is ...** The defence to producing a Class B drug was that D believed he was involved in the secret production of a cure for cancer. **D had given a 'no comment' interview following legal advice, the solicitor apparently having thought that there was insufficient disclosure of the evidence against D at that stage**. Under cross-examination, D said that, while he could have given his explanation at the time, he had been stunned and surprised, had not had much sleep, and 'most people would act on the advice of their lawyer'. **The true question, however, according to Hoare, is not whether D's solicitors rightly or wrongly believed that D was not required to answer the questions, nor whether D genuinely relied on the advice in the sense that he believed he had the right to do so. The true question is whether D remained silent 'not because of that advice but because he had no or no satisfactory explanation to give'.** It was not disputed that D had a 'reason' for silence in that his preferred solicitor, who was unable to attend the interview, had advised him to make no comment. **However, the jury, following a proper direction on the matter, were entitled to conclude that the fact relied on (that D was not a driver who had given false details to a police officer, and that the offender was probably a man to whom D had rented the car) could reasonably have been expected to be mentioned.** Court of Appeal added the rider that in such cases a court may wish to **pause and consider whether a s. 34 direction helps the jury** (e.g., where the defence at trial is a simple denial of presence). Accused claims to have remained silent on legal advice which follows the contours of the judgment in Hoare, but also stresses the importance of considering the age and maturity of the accused and the complexity of the facts relied on. Where the accused may have had a good defence but chose on legal advice to remain silent, no inference should be drawn, but where the jury are sure that the accused had no such defence and 'merely hid behind the legal advice', an inference may be drawn. ***[WAIVER OF PRIVILIGE? ]*** - The accused who wishes to explain the reasons for silence following legal advice may find it hard to do so without waiving privilege. While no waiver is involved in a bare assertion that advice had been given to remain silent, **little weight in likely to attach to such an assertion unless the reasons for it are before the court**. A **waiver was held to have occurred where D called evidence in his defence of a statement made by his solicitor at interview, namely that he had advised D to remain silent because of the lack of evidence against him**. D was held to have been properly cross-examined about the extent to which he had disclosed to the solicitor the facts that subsequently formed the basis of his defence. **Lord Bingham CJ stated, obiter, that 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: the accused cannot 'have his cake and eat it' where privilege is concerned.** where it is said that there was no compulsion on D to disclose the advice given, other than the indirect compulsion to provide a convincing explanation for silence, and that because D chose to make the content of the solicitor's advice part of his defence he could not complain that the CJPO 1994 overrode the confidentiality of discussions with his legal adviser. **Where waiver takes place, the accused may be questioned about disclosures to the solicitor even where it is accepted that legal advice was given solely on the basis of the case as disclosed by the investigator.** The position is different where the accused merely responds to an allegation of recent fabrication by stating that **the defence was communicated to the solicitor: in that case the adviser stands in the same position as any other person to whom the defence was revealed, and no waiver is thereby involved.** It was held that the issue is not whether the prosecution or the defence adduce the evidence, but whether waiver has in fact occurred. The circumstances of the waiver, and how it is deployed by the Crown, may be relevant to whether it is fair to exclude evidence pursuant to the PACE 1984, s. 78. ***[What are Proper Inferences?]*** - Where the fact is one which the accused could reasonably have been expected to mention it will be permissible to draw 'such inferences from the failure as appear proper' (s. 34(2)) **in a variety of contexts including the determination of guilt (s. 34(2)(d), and whether there is a case to answer (s. 34(2)(c)), bearing in mind always that an inference drawn under the subsection is not by itself sufficient to sustain either determination** (s. 38(3). Although the most common inference from failure to reveal facts which are subsequently relied on is that the facts have been invented after the interview, it may equally appear to the jury that the accused had the facts in mind at the time of interview, but was unwilling to give an account and expose it to scrutiny. The jury may **deduce that the accused was faced with a choice between on the one hand silence, and on the other either lying or further self-incrimination by telling the truth**. Again, this is a permissible inference under s. 34. Even if it is common ground that an accused spoke to a legal representative about a proposed defence of alibi before any interview took place, **the failure to reveal the alibi in interview was still a matter from which inferences could be drawn if the jury were unconvinced by the accused's explanation.** Where the **inference which the prosecution suggests should be drawn is not the standard inference of late fabrication but is less severe, the judge should make this clear when summing up.** In cases where the **accused attributes failure to mention facts to acting on legal advice, but without explaining the reasons behind the advice, the 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.** Provided the trial judge has given the proper directions in relation to s. 34, fair comment may be made on the evidence: **the judge is not obliged to 'sit quiet'.** **The judge commented, in relation to the defence argument that D was simply following legal advice in declining to answer questions**, that it was D, and not his solicitor, who ran the risk of being charged with the serious offence of possession of a firearm and ammunition and that it was his choice, in the light of the circumstances known to him, whether to accept the advice. **The judge also repeated in his direction a prosecution argument that, had the defence advanced at trial (that the gun was in a bag in the sole possession of a co-accused, and that D believed the bag to contain drugs) been true, it would have provided a '100 per cent defence' to the charge, so why would D not reveal it?** Both comments were held to be within the realm of legitimate comment on the facts. ***[What directions should be given where s34 is applicable? ]*** In all cases where the CJPO 1994, s. 34, is to be relied upon, it is submitted that a clear judicial direction will be required as to the nature of the inference that may properly be drawn. The key elements of the direction as they appear in the Compendium are: \(1) a **reminder that the accused was cautioned that he or she did not have to say anything, and therefore had a right to say nothing, but was also warned that conclusions might be drawn from failure to mention facts later relied on** (2) a. the **identification in consultation with the advocates of the facts which were not mentioned but are now relied on in defence together** with b. **any reasons given for the failure to mention those facts**; and c. **the conclusions it is suggested might be drawn** (usually that the fact has been made up after interview and is not true); \(3) **an instruction to consider whether the prosecution case as it stood at the time of the interview clearly called for an answer, and if it did, to consider whether, taking account of any explanation given by the accused, there was no sensible explanation for the failure other than that the accused had no answer at the time or none that would stand up to scrutiny.** \(4) an instruction **only to draw an adverse conclusion if it is 'fair and proper' to do so**, and in any case **not to convict the accused wholly or mainly on the strength of it.** Although this requirement was not set out in the wording of s. 34, it would be wrong to draw an inference against D if nothing has been said or shown to D at the police interview to call for an answer. The failure of the trial judge in that case to follow the direction verbatim was not to be criticised: the question was whether the terms in which the judge directed the jury were correct in law and sufficient in the circumstances of the case. Three-stage test when applying s. 34 (at \[26\]): 1. Has the defendant relied in his defence on a fact which he could reasonably have been expected to mention in his interview, but did not? If so, what is it? 2. What is his explanation for not having mentioned it? 3. If that explanation is not a reasonable one, is the proper inference to be drawn that he is guilty? Where prosecution counsel h**ad not sought to rely upon s. 34, and had not raised the matter with the accused in cross-examination, the Court of Appeal in Khan \[1999\] 2 Arch News 2 rightly 'deprecated' the decision of the trial judge to direct the jury that they might draw an inference under s. 34 without having raised the matter with counsel.** It was held, however, that (as there would have been no basis upon which the judge could have been deterred from giving the direction had the matter been argued) D had suffered no disadvantage. It is submitted that this is a dangerous approach. **A trial judge ought not, in fairness, to leave it open to the jury to make use of silence which, because the defence did not expect to have to explain it away, has not been the subject of any comment by the accused or the defence witnesses. If the judge thinks that s. 34 might come into play, the matter should be raised in time for it to be the subject of evidence not speculation.** If, on the other hand, there has been no discussion with counsel of the intended direction in circumstances where it is clear to the defence that the prosecution is relying on the accused's failure to mention a specific fact, it is unlikely that the omission will render the trial unfair The direction had been discussed with counsel, who were left with the impression that no direction of the kind that was in due course given would be used. **The importance of following and adapting the current approved direction is frequently mentioned in connection with s. 34, and although it need not be slavishly adhered to in every case (Salami \[2003\] EWCA Crim 3831) it affords particularly useful guidance in this difficult area, provided always that it is tailored to fit the facts of the case.** **A direction may be called for where there is more than one accused. If A has failed to mention a relevant fact so as to attract a s. 34 direction, it is desirable in the case of co-accused B whose case stands or falls with A's to give a direction not to draw any inference against B.** Where **more than one accused attracts a s. 34 direction, the judge should avoid dealing with their cases compendiously but should identify what each has said at trial that might have been said earlier.** A direction may also be called for in relation to something said by the accused which the prosecution claims both conceals a fact later relied on and constitutes a positive lie. In such a case the facts may require that **both a s. 34 direction and a Lucas direction** Court of Appeal observed that **it is usually unhelpful to give both directions; the judge should select and if necessary, adapt the direction more appropriate to the facts and issues in the case.** The issue as to whether D had lied was a subsidiary question: the key issue was whether the explanation he had given at trial was a late invention, it not having been mentioned at interview. **A s. 34 direction was called for, but once the jury, following that direction, had concluded that the explanation was false, there was no need for what is in essence the protection of a Lucas direction**, the function of which is to point out that there might be an innocent reason for lying. protective nature of the Lucas direction was cited in Spottiswood \[2019\] EWCA Crim 949 as a reason for giving the directions in combination where the lie and the failure to mention facts raised slightly different, albeit interrelated, issues for the jury. Court of Appeal accepted, without encouraging the practice, that a trial judge might give both directions provided that each direction guarded against impermissible inferences. Court of Appeal emphasised that Hackett was concerned with a straightforward situation **where D had failed to mention matters on which he later relied, by telling in interview what was contended to be a lie, and by giving the same explanation for his failure to mention a fact and for what was contended to be a lie. In such a case it is preferable to give a single direction---appropriately modified, if necessary---to combine the Lucas and s. 34 directions, where it is feasible and convenient to do so.** It is ultimately a question for the judge to determine whether a dual direction or two separate directions best fits the facts and circumstances of the case **Two separate issues arose as to the lies told in D's first police interview, and his failure to raise the matter of coercion relied on at trial over the course of that and a subsequent interview, so that the judge's decision to give separate directions was 'entirely sustainable'.** In a postscript, the Court emphasised the importance of sharing proposed directions with counsel in advance to allow any concerns to be addressed. where D was charged with driving at V and falsely claimed not to have been driving. His explanation for both the lie and the withholding of the defence of accident was his desire to conceal the fact that he was driving whilst disqualified. It was said that this was a case where a combined direction was more likely to assist the jury, although the conviction was not rendered unsafe by the giving of both directions in full. The failure of the judge to direct the jury that they should specifically reject D's reason for silence before drawing an inference was not fatal to the fairness of the trial where the jury must, in rejecting D's defence, have also rejected his reason for remaining silent. ***[FAILURE TO ACCOUNT FOR OBJECTS, SUBSTANCES, MARKS AND PRESENCE -- ]*** ***[S36 -- ]*** Where--- a person is arrested by a constable, and there is--- - on his person; or - in or on his clothing or footwear; or - otherwise in his possession; or - in any place in which he is at the time of his arrest, any object, substance or mark, or there is any mark on any such object; and that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and the person fails or refuses to do so, **then if, in any proceedings against the person for the offence so specified, evidence of those matters is given, subsection (2) below applies**. Where this subsection applies--- \(a) \[repealed\]; \(b) a judge, in deciding whether to grant an application made by the accused under paragraph 2 of schedule 3 to the Crime and Disorder Act 1998; \(c) the court, in determining whether there is a case to answer; and \(d) **the court or jury, in determining whether the accused is guilty of the offence charged,** **may draw such inferences from the failure or refusal as appear proper.** **Subsections (1) and (2) above apply to the condition of clothing or footwear as they apply to a substance or mark thereon.** **Subsections (1) and (2) above do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.** **Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.** This section applies in relation **to officers of customs and excise as it applies in relation to constables.** This section **does not preclude the drawing of any inference from a failure or refusal of the accused to account for the presence of an object, substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this section**. This section **does not apply in relation to a failure or refusal which occurred before the commencement of this section.** ***[S37 -- ]*** \(1) Where--- a. a **person arrested by a constable was found by him at a place at or about the time the offence for which he was arrested is alleged to have been committed**; and b. that or another constable investigating the offence reasonably believes that the **presence of the person at that place and at that time may be attributable to his participation in the commission of the offence**; and c. the **constable informs the person that he so believes, and requests him to account for that presence; and** d. the person fails or refuses to do so, then if, in any proceedings against the person for the offence, evidence of those matters is given, subsection (2) below applies. Where this subsection applies--- a. \[repealed\]; b. a judge, in deciding whether to grant an application made by the accused under paragraph 2 of schedule 3 to the Crime and Disorder Act 1998; c. the court, in determining whether there is a case to answer; and d. the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure or refusal as appear proper. **Subsections (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.** Where **the accused was at an authorised place of detention at the time of the failure or refusal, subsection (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.** This section applies in relation to officers of customs and excise as it applies in relation to constables. This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for his presence at a place which could properly be drawn apart from this section. This section does not apply in relation to a failure or refusal which occurred before the commencement of this section. ***[What is the basis for inference? ]*** Neither s. 36 nor s. 37 of the CJPO 1994 permits an inference to be drawn unless four conditions are satisfied: a. the accused is arrested; b. a constable (not necessarily the arresting officer) reasonably believes that the object, substance or mark, or the presence of the accused at the relevant place, may be attributable to the accused's participation in a crime (in s. 36 an offence 'specified by the constable'; in s. 37 the offence for which he was arrested); c. the constable informs the accused of his belief and requests an explanation of the matter in question; d. the constable tells the suspect in ordinary language the effect of a failure or refusal to comply with the request. The **four conditions may, on their face, be satisfied where an arrested person is confronted with incriminating circumstances before being taken to the police station for interview**. However, **a request for information under the two sections would appear to be a form of questioning, and because an arrested suspect should not normally be questioned about involvement in an offence except in interview at a police station or other authorised place of detention (PACE Code C, para. 11.1) the tendering in evidence of an unproductive request for information 'on the beat' should be the exception rather than the norm**. **If such a request is made and is alleged to have yielded a silence from which inferences can properly be drawn, the procedure for putting the silence to the suspect in a subsequent interview at the police station will apply.** As with s. 34 (see F20.4), **only 'proper' inferences may be drawn**. The jury must be **satisfied that the accused has failed to 'account' for the relevant matter (Compton \[2002\] EWCA Crim 2835 ) and that any explanation advanced by the accused should be rejected as implausible before an inference can be said to be proper** (see F20.17). Clearly the **strength of the inference increases with the suspicious nature of the circumstances,** so that if the accused is arrested when in possession of a car with explosive devices in full view on the back seat, failure to give an account is more suggestive of guilt than in the case of a refusal to account for a dirty mark on clothing following a fight. In some cases a strong inference is proper. D had been given an opportunity to account for an incriminating receipt found in his pocket, and his presence near the scene of the crime, but had maintained complete silence. The Court of Appeal for Northern Ireland accepted the **trial judge's inference, drawn under provisions equivalent to ss. 36 and 37, that D was determined to sit out interrogation, assess the strength of the case against him and, if charged, to present a version of his activities unembarrassed by any statements to which he might have committed himself during interview.** Section 36 is concerned with the state of the suspect at the time of arrest. It does not matter how much time elapses between the incident and the arrest, provided the inference remains relevant. **D was identified, by the scarring that the bullet wound had left on his body, as a gunman who had been shot in self-defence in the course of an attempted murder in 1981.** His failure to account for the scarring was the subject of **specific adverse inferences at his trial in 2010.** **Neither s. 36 nor s. 37 permits the drawing of inferences in respect of the state or location of the accused at times other than arrest, e.g., when seen by an eye-witness at the time of the crime, and s. 37 applies only when the accused was found at the location of the crime 'at or about the time of the commission of the alleged offence and not, for example, if a suspect gives the police the slip at the scene and is arrested elsewhere.** If the intention is to build upon already suspicious circumstances by allowing an additional guilty inference if the accused fails to explain them, it is not clear why the provisions are so restrictive: **a suspected rapist may have inferences drawn for failing to explain away stains on his trousers, but not for refusing to explain why he is not wearing any (unless he has discarded them nearby).** Section 38(3) provides that an inference drawn under these provisions may, inter alia, form part of the case to answer or contribute to a verdict of guilty, though neither outcome may be based 'solely' upon such an inference. It is not clear what this means. **An inference drawn under ss. 36 and 37 can never exist 'solely', in the sense of independently of the proof of the suspicious circumstances for which the accused refuses to account. In some cases, such circumstances may be sufficient to convict, as in the case of a man arrested with two bombs on the back seat of his car. The fact that the accused gave no explanation cannot prevent the circumstances having this effect: on the contrary, it strengthens the inference to be drawn from them**. Perhaps the intention behind the provision is to prompt the judge to tell the jury not to convict just because the accused has been unhelpful. ***[Failure to Testify -- ]*** Under the CJPO 1994, s. 35, inferences from failure to testify are permissible. Nature of the inference available will depend on the way in which the evidence has developed and the strength of the prosecution case --- the stronger the case the more powerful the incentive to provide an answer. A careful direction will be required in all cases where the accused does not testify, in order to make the jury aware of the inferences which may properly be drawn, not least because of the need to comply with the 'fair trial' provisions of the ECHR, Article 6. One of the purposes of the direction is to make the jury aware that the right to silence still exists in the sense that the accused is under no obligation to testify. ***[S35 -- ]*** At **the trial of any person for an offence, subsections (2) and (3) below apply unless**--- a. the **accused's guilt is not in issue**; or b. it appears to the court that **the physical or mental condition of the accused makes it undesirable for him to give evidence** but subsection **(2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.** Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution**, satisfy itself (in the case of proceedings on indictment with a jury, in the presence of the jury) that the accused is aware that 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, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.** Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, **may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question**. This section **does not render the accused compellable to give evidence on his own behalf,** and **he shall accordingly not be guilty of contempt of court by reason of a failure to do so.** For the purposes of this section a person who, having been sworn, refuses to answer any question shall be taken **to do so without good cause unless---** a. he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or b. the court in the exercise of its general discretion excuses him from answering it. \(7) This section applies--- a. **in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section** b. in **relation to proceedings in a magistrates' court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section.** ***[Procedure -- ]*** - The court is obliged to satisfy itself that defendants who have not indicated that they intend to give evidence understand the consequences of declining to do so - Burden of explaining the option to testify and the consequences of failing to do so to the defendant rests, in the case of a legally represented defendant, with the legal representative. - The court's obligation in s. 35(2) to satisfy itself that the accused knows of the entitlement to give evidence is mandatory and cannot be overlooked even where the accused has absconded. - The pre-trial process requires that at a PTPH the court is satisfied that the accused understands the right to give evidence (CrimPR 3.21; see Supplement, R3.21). It has long been the recommended practice, and is of great importance in light of s. 35, for counsel to record the decision of the accused not to give evidence, and to sign it and indicate that it was made voluntarily. - The decision is frequently a stressful one for the accused, and where there is a potential issue as to the accused's capacity to make such a decision it is of particular importance that the necessary considerations are fully and properly spelled out. - Where it is contended on appeal that the accused was misadvised, or was not in a position to make an informed decision, the appellant must provide the court with a statement setting out the relevant history. ***[What are proper inferences of guilt for s35?]*** The 'proper' inferences come about as a result of the failure of the accused to give evidence or refusal without good cause to answer any question. By virtue of s. 35(5), the accused may be excused from answering a particular question on grounds of privilege or statutory entitlement, or in the discretion of the court. An observation that the accused has, by failing to give evidence, deprived the jury of contradiction or explanation of prosecution evidence can only fairly be made if the uncontradicted evidence concerns a matter about which the accused can confidently be expected to have personal knowledge. In some cases, **the evidence of the accused is superfluous** (e.g., where the only issue was as to whether agreed facts fell within the offence of keeping a disorderly house: McManus \[2001\] EWCA Crim 2455 ). In such a case a s. 35 direction is inappropriate and prejudicial. ***[What about accused with physical or mental impairment?]*** The right of a defendant to give evidence in his or her own defence is an essential aspect of a fair trial and 'a defendant who wishes to give evidence must be given a full and fair opportunity to do so' (Welland \[2018\] EWCA Crim 2036). A direction that no adverse inference should be drawn under s. 35 was not an adequate countermeasure where D's trial had continued despite his hospitalisation, denying him the right to testify. D was tried for murder. He had a physical age of 15, a mental age of nine, and an IQ of 63. Expert evidence suggested that, although not suggestible, his powers of comprehension were limited and he might find it difficult to do justice to himself in the witness-box. Nevertheless D had given a clear account of his defence at various stages prior to trial. Taking all these matters into account, the trial judge ruled that D's mental condition did not make it 'undesirable' for him to give evidence, so that his failure to do so led to the jury being directed that they might draw inferences under s. 35(3). The Court of Appeal agreed, noting that it would only be in a rare case that the judge would be called upon to arrive at a decision under s. 35(1)(b): an accused who was unable to comprehend proceedings so as to make a proper defence would be unfit to plead, so the issue would not arise. an 87-year-old man whose long-term memory was impaired was tried for sexual offences alleged to have occurred 50 years previously. The Court of Appeal declined to hold that it was wrong to give a s. 35 direction, although other judges might have decided against it. There were matters which D appeared to recollect well enough to give an account of them in cross-examination, and the judge was clearly prepared to ensure that, had D given evidence, the process could have been conducted with due sensitivity to his condition. The trial judge in Friend seems to have been much influenced by the fact that measures can be taken by which vulnerable defendants can, if their needs are correctly assessed, be protected from unfair or oppressive cross-examination. Thus, as the main reason for questioning the desirability of D testifying was that he might give a poor account of himself unless care were taken to ensure that he understood and had time to respond to questions, the fact that the court itself could respond sensitively to D's needs was a factor militating against the defence argument. Similar accommodation can be made for elderly witnesses such as in Burnett. **The outcome suggests that the discretion will be exercised against the background of an assumption that it is generally desirable for an accused to testify, so that cases in which it can be said to be 'undesirable' will be rare indeed.** The possibility of using an intermediary to overcome communication difficulties also weighs in the balance in favour of the giving of evidence. in that case the intermediary was not forthcoming despite the trial judge ruling that such assistance was necessary. The adverse inference direction was upheld because there was no causal link between the absence of the intermediary and the decision of D not to testify. **ECtHR paid particular attention to the safeguards suggested by the judge to allow D, a man of limited intelligence, to give such evidence as he wished to do, and to control the questioning in a manner similar to that adopted where young children testify**. D having declined to testify; the judge had fairly left the question of whether adverse inferences should be drawn to the jury. In the rare case where the physical or mental condition of the accused makes it inappropriate to draw adverse inferences, the jury should be specifically directed to this effect. D, who suffered from angina, was fit to be tried but not to testify, and it was agreed that no adverse inferences should be drawn. Trial judge was held entitled to conclude that D's history of self-harm and post-traumatic stress disorder did not render it undesirable for him to give evidence: the risk that he might react in a hostile way to questioning and lose his self-control was one which could be taken into account by the jury, and did not justify a comprehensive failure to testify. s\. 35(1)(b) requires that the accused's physical or mental condition is such that if the accused gives evidence it will have a 'significantly adverse effect on him'. **However, in Dixon it was pointed out that the sole issue in Ensor related to the adverse effect on D's health, and that there was no warrant for confining s. 35(1)(b) to such cases**. In Dixon it was held relevant to consider D's difficulty in expressing himself and his problems of understanding, which were such that the judge had made an intermediary available to assist him had he testified. Nevertheless these features did not, properly considered, require the judge to find that it was undesirable for D to testify. an alleged loss of memory of the incident did not amount to a justification for not giving evidence in which the memory loss could have been tested. the Court of Appeal rejected an argument that it was necessarily 'undesirable' for a defendant with an ongoing mental disorder to give evidence if the only way in which this could fairly be done would be if the evidence were accompanied by expert evidence explaining to the jury why some of the accused's testimony might be unreliable. There to be an evidential basis for a ruling that s. 35(1)(b) applies. A *voir dire may be required to determine the issue*, although the judge is, according to A, under no obligation to initiate the procedure if defence counsel does not seek to do so. it was doubted whether, even in summary trial, **non-expert evidence (such as that of a family member) as to the mental condition of the accused could be sufficient**. In that case D's mother had testified to his history of depression, but even her evidence taken at its highest fell short of disclosing a subsisting condition making it undesirable for him to give evidence. **a judge could revisit a ruling that it was undesirable for an accused to testify.** However, it was on the facts of that case **unfair for the medical evidence relied on by D and rejected by the judge to be withheld from the jury**, as it was essential to their assessment of the extent to which they should take into account his failure to give evidence. ***[What is the nature of inference under s35? ]*** The adverse inference which it may be proper to draw under s. 35(3) of the CJPO 1994 is that the **accused 'is guilty of the offence charged'.** As s. 35 does not come into play until after the close of the evidence for the prosecution, it presupposes that a prima facie case has already been established against the accused. D was convicted of attempted murder and possession of a firearm with intent to endanger life. Scientific evidence linked D with a car used in the attack: the situation was one calling for 'confession and avoidance'. D advanced various explanations during interrogation, but gave no evidence at trial, from which failure the trial judge drew a strong adverse inference. The House of Lords considered that the inference was justified. The accused is not compellable to testify, but must risk the consequences if he or she does not do so. These consequences are not simply that specific inferences may be drawn from specific facts, but include in a proper case the inference that the accused is guilty. ***[No conviction solely on s35 -- ]*** Court of Appeal emphasised that the **prosecution remains under an obligation to establish a prima facie case before any question of the accused testifying is raised**. Their lordships took this to mean not only that the case should be fit to be left to the jury, but also that the **judge should make clear to the jury that they must be convinced of the existence of a prima facie case before drawing an adverse inference from silence**. This may seem to go beyond the strict requirement of the statute but serves to ensure conformity with the principle in Murray v UK (1996) 22 EHRR 29 that the accused should not be convicted 'solely or mainly' on an inference from silence. In a case where there is a compelling case for the accused to answer it has been held that the failure to direct in accordance with this aspect of Cowan could not affect the safety of the conviction. the case for the prosecution in a sexual offence depended on the credibility of a complainant who had delayed making a complaint for more than ten years, the CCRC **referred the case to the Court of Appeal on the basis that the omission to direct the jury that they should first find a case to answer might have led to them using the accused's failure to testify to 'shore up' the deficiencies in the complainant's evidence**. The Court of Appeal dismissed this possibility as 'fanciful' in light of the **very clear directions that had been given to the jury that they had to be 'sure' the complainant was not lying, and that the accused's silence was not by itself proof of guilt**. The Court considered that the direction to the jury to **find a prima facie case before considering the implications of the accused's silence 'amplifies and spells out' what is already implicit in the separate injunction that failure to give evidence cannot by itself prove guilt**. a specific comment by the trial judge might, taken in isolation, have led the jury to think that they should consider the inference to be drawn from D's failure to give evidence before deciding whether he had a case to answer. Read as a whole, however, the direction would not have created this false impression. The trial judge commented not only on the failure of the accused to testify but also on their failure to give any account when interviewed of the events leading to the death of V following an assault in the home they shared, saying (at \[61\]) '*they do not have to but you may think they could and chose not to and you have every right to ask why'*. The comments **were held to be 'reasonable' in the circumstances, or at least not 'unduly prejudicial'**. The comments appear to go beyond what is sanctioned by s. 6(2) which applies to the failure to 'give evidence or refusal to answer a question'. ***[What is the general rule of drawing an inference? ]*** The plain wording of s. 35 indicated that it was not limited to exceptional cases: on the contrary, the exceptional cases were those dealt with in s. 35(1), in which the provisions were not to be invoked. **However, it was open to a court in any case to which the exceptions in s. 35(1) did not apply to decline to draw an inference from silence, though for a judge to advise a jury against drawing such an inference would require either 'some evidential basis for doing so or some exceptional factors in the case making that a fair course to take'**. An inference cannot be drawn unless the jury decide that the silence 'can only sensibly be attributed' to the accused having no answer, or none that would stand up to cross-examination. **In cases where the accused suffers from a condition that falls short of one making it 'undesirable' for the accused to give evidence under s. 35(1)(b), it is open to a jury to conclude that the reason for not testifying relates to the condition** rather than to the accused having no answer. so as not to leave the jury with the impression that an inference could be drawn in any other case, such as where the accused's testimony would merely have been 'of assistance' to them. D claimed that the failure of the police to interview him while the frauds with which he was charged were reasonably fresh in his mind should have led the judge to direct the jury to draw no adverse inferences from his silence at trial. It was held that this was not, under Cowan, an exceptional case where such a direction would have been justified in the interests of justice. Nothing prevented D from making his own record from which to refresh his memory, and the crucial issues were in any case sufficiently memorable to present him with no difficulty of recollection. Endorsed the practice of giving a s. 35 direction notwithstanding that D had made a tactical decision not to testify in order to keep his bad character from being revealed. **Under s. 101(1)(g) (see F13.84), the bad character of an accused who has attacked another person's character may be revealed to the jury whether the accused testifies or not, so the dilemma in Becouarn no longer obtains.** It is not a valid argument that the accused fears that giving evidence will result in an application to adduce evidence of bad character. Even if the prosecutor is unwilling to clarify the position, it cannot be said that the accused is thereby put under unfair pressure not to testify. ***[Should there be inferences where prosecution case is weak? ]*** - Inferences of guilt should not be drawn from failure to give evidence to contradict a prosecution case of 'little evidential value'. This accords with the position at common law, where it was considered improper for a judge to bolster a weak prosecution case by making comments on an accused's failure to give evidence. Divisional Court **rejected an argument that no inferences should be drawn from the failure of a child to testify in a case of robbery of a mobile phone that depended on the correctness of an identification substantially based on hearsay evidence**. It was held that, once it had been decided that there was a case to answer, **the failure of D to give evidence about relevant matters in his police interview (in the absence of evidence of a reason for his silence) made the drawing of an inference permissible**. ***[Strong Inference where Facts Clearly Call for Explanation or are within the Accused's Knowledge]*** The Court of Appeal identified exceptional cases at common law in which stronger comment was justified. They were those in which an inference could be drawn from uncontested or clearly established facts which point so strongly to guilt as to call for an explanation. D gave no evidence, but alleged that the police had planted incriminating evidence on him and cross-examined a prosecution witness on a conviction. It is submitted that such a case would support a strong inference under the CJPO 1994 that the defence was untrue.