Unit 7 - Inferences Reading PDF

**9.       Jury trial procedure** 1.       ... 2.       ... 3.       ... 5.       ...summing up \*\*BCP paragraph D18.21 (first paragraph on summing up only\*\*) 6.       ... **20.    Privilege** 1.        ... 2.        legal professional privilege and waiver of privilege **17.    Inference...

**9.       Jury trial procedure** 1.       ... 2.       ... 3.       ... 5.       ...summing up \*\*BCP paragraph D18.21 (first paragraph on summing up only\*\*) 6.       ... **20.    Privilege** 1.        ... 2.        legal professional privilege and waiver of privilege **17.    Inferences from the defendant's silence and other conduct** 1. evidential significance of the defendant's lies and directions that should be given to the jury. 2. inferences from the defendant's failure to mention facts when questioned. 3. inferences from the defendant's failure to account for objects, substances and marks and from the defendant's failure to account for his presence at the scene of a crime. 4. inferences from the defendant's failure to testify in his own defence during the trial, including the advice that should be given to a defendant about this issue. **9.      Jury trial procedure** 1.       ... 2.       ... 3.       ... 5.       ...summing up \*\*BCP paragraph D18.21 (first paragraph on summing up only\*\*) 6.       ... [Summing-up] [Preliminary and General Matters] D18.21 The trial judge\'s summing-up conventionally falls into two parts, namely, a direction on the law (see D18.25) and a summary of the evidence (see D18.36). CrimPR 25.14(3) (see Supplement, R25.14) sets out the appropriate steps to be followed on summing-up. The use of written directions is also strongly advocated (CrimPD 8.5; see Supplement, PD8.5; see also D18.24). The Court of Appeal has stressed the desirability of using the Crown Court Compendium as an invaluable resource in terms of guidance and draft directions (G \[2018\] EWCA Crim 1393; Miah \[2018\] EWCA Crim 563). **20.    Privilege** 1.        ... 2.        legal professional privilege and waiver of privilege **[Legal Professional Privilege ]** [Scope of privilege ] F10.17 A client may, and his or her legal adviser must (subject to the client\'s waiver), refuse to give oral evidence or to produce documents relating to two types of confidential communication: a. communications between client and legal adviser made for dominant purpose of enabling client to obtain/legal adviser to give, legal advice about any matter, whether or not litigation was contemplated at the time. b. Communications between client or legal adviser and third parties, the sole dominant purpose of which was to enable legal adviser to advise or act in relation to litigation that was pending or contemplated by client. (Litigation privilege) [Proof of privilege ] F10.18 The evidential burden of establishing that a document or communication is privileged lies on the party claiming privilege (Westminster International BV v Dornoch \[2009\] EWCA Civ 1323, at \[36\]). The question of privilege is for the court; the mere assertion of privilege or statement of the purpose for which a document was created is not in itself determinative. The court must consider carefully the evidence supporting the claim, which should be specific enough to show something of the deponent\'s analysis of the documents and the purposes for which they were created, preferably by reference to such contemporaneous material as can be referred to without disclosing the privileged matters. In most cases, the evidence should come from the person whose motivation and state of mind is in issue. If not satisfied on the basis of the evidence that a claim to privilege has been made out, as a last resort the court may inspect the documents, but should not do so unless either there is credible evidence that those claiming privilege have misunderstood their duty or are not to be trusted with the decision-making, or there is no reasonably practical alternative. [Legal Advice Privilege] F10.21 Legal advice privilege covers communications between clients and their legal advisers for the dominant purpose of obtaining or giving legal advice. It also covers documents evidencing such communications and documents intended to be such communications, even if not in fact communicated (Three Rivers District Council v Governor and Company of the Bank of England (No. 5) \[2003\] EWCA Civ 474). The communications must have been made either in the course of the relationship between client and legal adviser or with a view to its establishment (Minter v Priest \[1930\] AC 558). The privilege extends to instructions given by the client to the solicitor or by the solicitor to the barrister and to counsel\'s opinion taken by a solicitor (Bristol Corporation v Cox (1884) 26 Ch D 678). However, documents emanating from, or prepared by, independent third parties and passed to the lawyer for the purposes of advice are not privileged. F10.22 Corporate Clients In Three Rivers District Council v Governor and Company of the Bank of England (No. 5) \[2003\] EWCA Civ 474, it was held that legal advice privilege protects only direct communications between the client and the lawyer and evidence of the content of such communications, and that in the case of a corporate client the privilege covers only: [Litigation Professional Privilege ] F10.28 The main principles relating to the scope of litigation privilege were set out by Sir Terence Etherton MR in WH Holdings Ltd v E20 Stadium LLP \[2018\] EWCA Civ 2652 (at \[27\]).  There is an additional restriction: the privilege only applies in the case of litigation that is adversarial, not investigative or inquisitorial (Three Rivers District Council v Governor and Company of the Bank of England (No. 6) \[2004\] UKHL 48). As to (c) above, in Director of the SFO v Eurasian Natural Resources Corporation Ltd \[2018\] EWCA Civ 2006, at \[102\] that in both the civil and the criminal contexts, legal advice given to head off, avoid or settle reasonably contemplated proceedings is as much protected by litigation privilege as advice given for the purpose of resisting or defending such proceedings. Legal advice privilege, in the case of a corporate client, covers only communications with those officers or employees expressly designated to act as the \'client\' (see F10.22). - This principle has no application to litigation privilege because whereas legal advice privilege is confined to communications between lawyer and client, litigation privilege extends to third parties, covering any legal or natural person, including employees of the client not authorized to seek or receive advice on behalf of the client (Al Sadeq v Dechert LLP \[2024\] EWCA Civ 28 at \[223\]). [Types of documents covered] F10.29 The privilege covers documents created by a party for the purpose of instructing the lawyer and obtaining advice in the conduct of the litigation (Anderson v Bank of British Columbia (1876) 2 Ch D 644, per James LJ at p. 656), but not documents obtained by a party or the party\'s adviser for the purpose of litigation that were not created for that purpose (Ventouris v Mountain \[1991\] 3 All ER 472). [Iniquity ] F10.38 Where there is a prima facie case of fraud, crime or other iniquity, there is no privilege in communications brought into existence as part of or in furtherance of the iniquity. The exception covers both communications which reveal or report the iniquity and those brought into existence in preparation for the iniquity (Al Sadeq v Dechert LLP \[2024\] EWCA Civ 28, at \[166\]). The iniquity needs to be shown on a balance of probabilities, i.e. it must be more likely than not on the material available to the decision-maker. [Waiver of Privilege and the Criminal Justice and Public Order Act 1994, s34] F10.43 In Condron \[1997\] 1 WLR 827, the Court of Appeal gave the following guidance relating to legal professional privilege where an accused refuses to answer police questions on the advice of his or her solicitor. Communications between accused and solicitor prior to interviews by the police are subject to the privilege. If an accused gives as a reason for not answering that he or she has been advised by the solicitor not to do so, that advice does not amount to a waiver of privilege. But if the accused wishes to invite the court not to draw an adverse inference under the CJPO 1994, s. 34 (see F20.4), it is necessary to go further and state the basis or reason for the advice. This may well amount to a waiver of privilege so that the accused or, if the accused\'s solicitor is also called, the solicitor, can be asked whether there were any other reasons for the advice, and the nature of the advice given, so as to explore whether the advice may also have been given for tactical reasons. F10.44 If the defence reveal the basis or reason for the solicitor\'s advice to the accused not to answer police questions, this will amount to a waiver of privilege whether the revelation is made by the accused or by the solicitor acting within the scope of his or her authority as agent on behalf of the accused, and whether the revelation is made in the course of pre-trial questioning, in evidence before the jury, or in evidence on the voir dire which is not repeated before the jury (Bowden \[1999\] 4 All ER 582) **17.    Inferences from the defendant's silence and other conduct** 1. evidential significance of the defendant's lies and directions that should be given to the jury. 2. inferences from the defendant's failure to mention facts when questioned. 3. inferences from the defendant's failure to account for objects, substances and marks and from the defendant's failure to account for his presence at the scene of a crime. 4. inferences from the defendant's failure to testify in his own defence during the trial, including the advice that should be given to a defendant about this issue. 1. **[Circumstantial Evidence]** [Lies] F1.25 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, as in Goodway \[1993\] 4 All ER 894 where 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. In ***Lucas*** \[1981\] QB 720, Lord Lane CJ held, at p. 724: In Reszpondek \[2010\] EWCA Crim 2358 at \[19\], 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. In Goodway it was also held that a Lucas direction need not be given where it is otiose as indicated in Dehar \[1969\] NZLR 763, 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. [The Four *Burge* Situations] F1.26 In Burge \[1996\] 1 Cr App R 163, the Court of Appeal held that a Lucas direction is usually required in four situations, which may overlap (Kennedy LJ at p. 173):  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. 2. **[Silence and the Non-Production of Evidence]** [The Right to Silence] F20.1 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 (Rice v Connolly \[1966\] 2 QB 414). F20.2 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 (McGarry \[1999\] 3 All ER 805 and F20.27). Where the statutory scheme comes into play, a jury must be properly directed regarding the inferences that can be drawn (Condron v UK (2001) 31 EHRR 1 (1)). **[Out-of-Court Silence under the 1994 Act ]** [Failure to reveal facts afterwards relied upon in court] F20.3 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**. F20.4 Criminal Justice and Public Order 1994, s34 1. Where, in any proceedings against a person for an offence, evidence is given that the accused -- a. At any time before he was charged, **on being questioned under caution** (by constable trying to discover if he committed offence) failed to mention any fact relied on in his defence in those proceedings; or b. **On being charged with offence**... failed to mention any such fact; or c. **At any time after being charged with offence,** on being questioned under s22 C-T Act 2008 (post-charge questioning), failed to mention any such fact. 2. Where this subsection applies -- d. \[repealed\] e. Judge, in deciding to grant application made by accused under para 2 (schedule 3) CDA 1998; f. The court, in determining whether there is a case to answer; and g. 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. (2A)     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 3. 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. 4. 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... 5. This section does not -- h. 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 conduct for which he is charged (in so far as that evidence would be admissible anyway), or i. Preclude the drawing of any inference from any such silence or other reaction of the accused that could properly be drawn apart from this section. [Failure to reveal facts] F20.5 Section 34 permits the tribunal of fact to draw \'such inferences as appear proper\' (s. 34(2)) from the accused\'s failure to reveal specific facts, provided that the various conditions set forth in s. 34(1) are made out and any questions of fact arising thereunder are resolved against the accused (Argent \[1997\] 2 Cr App R 27). 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. In Abdalla \[2007\] EWCA Crim 2495, 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 Court of Appeal referred with approval to the statement of Hedley J in Brizzalari \[2004\] EWCA Crim 310 that the mischief at which s. 34 is primarily directed is \'the positive defence following a "no comment" interview and/or the "ambush" defence\'. [Adverse Inference consistent with right to fair trial ] F20.6 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. Failure to give a proper direction will not necessarily involve a breach of Article 6, nor render a conviction unsafe (Chenia \[2002\] EWCA Crim 2345, where earlier authorities are considered). [Access to legal advice] F20.7 Section 34(2A) of the CJPO 1994 was added by the YJCEA 1999, s. 58, to bring the law into line with the judgment of the ECtHR in Murray v UK (1996) 22 EHRR 29. 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. Where an accused person has been offered legal advice but has elected to proceed without it, an issue may arise as to whether there has been an effective waiver for the purposes of drawing inferences. However, in Saunders \[2012\] EWCA Crim 1380, the Court of Appeal regarded the speeches in McGowan as authority for the proposition that a waiver should be \'voluntary, informed and unequivocal\'. **[Out-of-Court Silence under the 1994 Act ]** [No Conviction etc Wholly or Mainly on Silence] F20.8 Criminal Justice and Public Order Act 1994, s. 38 (3)     A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2), 35(3), 36(2) or 37(2). (4)     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. [Facts Relied On] [Meaning of Reliance] F20.10 (first sub-paragraph) 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 (Smith (Troy Nicholas) \[2011\] EWCA Crim 1098). In Moshaid \[1998\] Crim LR 420, 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. [Identification of facts in direction] F20.11 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 (B (MT) \[2000\] Crim LR 181). 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 (Chenia \[2002\] EWCA Crim 2345; Lewis \[2003\] EWCA Crim 223) and should not be mixed with other, innocuous, facts from which no inference can be drawn (Zeinden). [Prepared Statements] F20.13 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. A prepared statement may, however, be a dangerous device for an innocent accused who later discovers that something significant has been omitted (Knight; Turner \[2003\] EWCA Crim 3108). In Turner it was noted that, 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. **[Out-of-Court Silence under the 1994 Act ]** [Caution or Charge] F20.14 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)). 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 (Johnson \[2005\] EWCA Crim 971). **[Out-of-Court Silence under the 1994 Act ]** [Facts which Should have been Mentioned] F20.17 Adverse inferences may be drawn from a fact subsequently relied on in defence only where the fact is one which, in the circumstances existing at the time, the accused could reasonably have been expected to mention (CJPO 1994, s. 34(1)). If the accused gives evidence, the reason for failing to disclose should be explored (T v DPP \[2007\] EWHC 1793 (Admin)), and any explanation advanced by the accused for non-disclosure must be considered in deciding what inferences, if any, should be drawn. In Walton \[2013\] EWCA Crim 2536, 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. In Hilliard \[2004\] EWCA Crim 837, 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. 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. In Argent the 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. [Legal Advice to remain silent] F20.18 The difficult issue of what use, if any, can be made of a failure to advance facts following legal advice to remain silent has been the subject of numerous decisions, both by domestic courts and Strasbourg. On the one hand, the courts seek to avoid having the accused drive a coach and horses through s. 34 by advancing an explanation for silence that is easy to make and difficult to investigate because of legal professional privilege. On the other hand, \'it is of the greatest importance that defendants should be able to be advised by their lawyer without their having to reveal the terms of that advice if they act in accordance with that advice\'. In Condron \[1997\] 1 WLR 827 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. Two strands of authority, one proceeding from Betts \[2001\] EWCA Crim 224 and the other from Howell \[2003\] EWCA Crim 1 and Knight \[2003\] EWCA Crim 1977, had been regarded as in conflict, with Betts favouring a subjective test (did the accused genuinely rely on legal advice?) and Howell and Knight an objective test (did the accused reasonably rely on legal advice?). The Court of Appeal in Beckles adopted the reconciliation of the two strands proposed by Auld LJ in Hoare \[2004\] EWCA Crim 784, under which \'genuine reliance by a defendant on his solicitor\'s advice to remain silent is not in itself enough to preclude adverse comment\'. [Waiver of Privilege and Statements] F20.20 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 is likely to attach to such an assertion unless the reasons for it are before the court (Condron \[1997\] 1 WLR 827; Robinson \[2003\] EWCA Crim 2219). In Bowden \[1999\] 4 All ER 582, 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. 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. [Admissions by Legal Representative and Hearsay] F20.21 Where a solicitor, following consultation with the accused, makes a statement to the officers conducting the interview with regard to the accused\'s reasons for silence (in the presence of the accused who says nothing in dissent), the statement may be given in evidence and may form the basis of an adverse inference (Fitzgerald \[1998\] 4 Arch News 2). It would appear that the Court of Appeal had in mind by way of exception to the hearsay rule either the doctrine of admission by an agent, or implied admission by silence where a statement is made in the presence of the accused. [Fairness where reasons for advice suggest bad character] F20.22 In some cases the reasons for the advice given to the accused may be difficult to explain to a jury without revealing that the accused is no stranger to the legal process. The point was raised (but not answered) in Beard \[2002\] EWCA Crim 772. Where the case is not one in which evidence of bad character is otherwise admissible, it will be necessary to consider whether to exclude some or all of the evidence relating to the failure to mention facts to avoid unfairness. **[Out-of-Court Silence under the 1994 Act ]** [Direction as to Permissible Inferences] F20.23 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 (Milford \[2001\] Crim LR 330). Similarly, 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 (Daniel \[1998\] 2 Cr App R 373). 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 [Relationship with ***LUCAS*** DIRECTIONS ON LIES] F20.26 A direction may also be called for in relation to something said by the accused which the prosecution claim 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 (see F1.25) should be given. In Hackett \[2011\] EWCA Crim 380, the 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, following observations in Rana \[2007\] EWCA Crim 2261. - In Hackett, 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. The 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. **[Out-of-Court Silence at Common Law]** [Accused and Accuser on 'even terms'] F20.28 The conduct of the accused when accused of a crime by a person on an equal footing may form the basis of an inference that the accusation is accepted (see F18.99). In the authorities that follow, it was the silence of the accused which was relied upon as the basis for such an inference. F20.29 In Norton \[1910\] 2 KB 496, it was accepted that the silence of the accused \'on an occasion which demanded an answer\' might be conduct from which an inference of acknowledgement might be drawn. In Mitchell (1892) 17 Cox CC 503, Cave J described more fully the circumstances in which silence in the face of an accusation might be tantamount to an admission of guilt. He said (at p. 508): Mitchell was approved by the Privy Council in Parkes v The Queen \[1976\] 3 All ER 380. A girl was stabbed to death, and D was charged with her murder. The girl\'s mother gave evidence that, on finding her daughter injured, she immediately accused D, who made no reply. When she threatened to detain him until the police arrived, he tried to stab her. It was held that D\'s reactions to the accusations, including his silence, were matters to be taken into account by the jury in deciding whether D had committed the offence charged. F20.30 Where silence may be attributable to a variety of factors it is for the jury to decide what inference to draw. In Coll \[2005\] EWCA Crim 3675, D was attending to the wounds of the dying victim when her co-accused allegedly made a remark suggesting that D should offer to be a witness \'so they can\'t tell we did it\'. The failure of D to react adversely to the use of \'we\' rather than \'I\' (her defence being that the co-accused alone was responsible) was held to have been properly left to the jury, along with D\'s explanation that she was not listening properly and was in shock. 3. F20.38 **[Failure to Account for Objects, Substances, Marks and Presence]** F20.38 Criminal Justice and Public Order Act 1994, ss. 36 and 37 **36.---** (1)     Where--- then if, in any proceedings against the person for the offence so specified, evidence of those matters is given, subsection (2) below applies. (2)     Where this subsection applies--- (3)     Subsections (1) and (2) above apply to the condition of clothing or footwear as they apply to a substance or mark thereon. (4)     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. (4A)     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. (5)     This section applies in relation to officers of customs and excise as it applies in relation to constables. (6)     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. (7)     This section does not apply in relation to a failure or refusal which occurred before the commencement of this section. **37.---** (1)     Where--- then if, in any proceedings against the person for the offence, evidence of those matters is given, subsection (2) below applies. (2)     Where this subsection applies--- (3)     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. (3A)     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. (4)     This section applies in relation to officers of customs and excise as it applies in relation to constables. (5)     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. (6)     This section does not apply in relation to a failure or refusal which occurred before the commencement of this section. **[Basis for Inference]** F20.40 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 F20.41 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. F20.42 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. Thus, for example, in McGeough \[2015\] UKSC 62, 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. F20.43 Section 38(3) (see F20.8) 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. It is not clear how frequently these two provisions will function independently of ss. 34 and 35. If D goes on to present a defence relying on facts that could have been mentioned earlier, as in Connolly, it is likely that s. 34 will also apply. If D gives no evidence, then s. 35 (see F20.46) may come into play. 4. **[Unfair Use of Pre-trial Silence]** F20.44 Failure or refusal to respond to questioning relevant to ss. 34, 36 and 37 seems unlikely to be regarded as a \'statement\', and is thus incapable of being a confession within s. 82 of the PACE 1984 for the purposes of s. 76 of that Act (see F18.8). Silence obtained by oppression or in circumstances conducive to unreliability would not therefore be automatically inadmissible, as would a confession similarly obtained. It would, however, be subject to exclusion under the discretion conferred by the PACE 1984, s. 78, in respect of all prosecution evidence, to the extent that it would be unfair to make use of it. Extensive use has also been made of s. 78 in rejecting confession evidence which, while admissible under s. 76, has been obtained in breach of the 1984 Act or Codes of Practice, or by other unfair means (see F18.29). - These authorities would seem to apply also to silence, with the result that, for example, failure to make proper records of an interrogation may lead to exclusion. **[Failure of Accused to Testify ]** F20.45 The CJPO 1994 repealed the Criminal Evidence Act 1898, s. 1(b). The 1898 Act provided that the failure of the accused to testify was not to be made the subject of any comment by the prosecution. **[Failure to testify following the 1994 Act]** F20.46 Under the CJPO 1994, s. 35, inferences from failure to testify are permissible. The Crown Court Compendium, ch. 17-5, stresses that the 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. The old authorities continue to provide a common-sense guide to the type of case in which the strongest inferences may be drawn (see further F20.49 to F20.56). 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 (Birchall \[1999\] Crim LR 311). - 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 (Cowan \[1996\] QB 373). **Criminal Justice and Public Order Act 1994, s. 35** (1)     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. (2)     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.** (3)     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. (4)     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. (5)     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---  (6)     \[Repealed.\] (7)     This section applies---  **[Failure to testify following the 1994 Act: PROCEDURE ]** F20.47 CrimPD 6.7 (see Supplement, PD6.7) provides guidance on the procedure to be followed regarding the defendant\'s right to give or not to give evidence. 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 (s. 35(2) and (3) and CrimPD 6.7.1). 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. Thus what matters, for the purposes of the requirement in s. 35(2) that the court should satisfy itself that the accused is aware of the possible consequences of a decision not to testify, is that the accused has had the necessary legal advice. 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 for the accused to sign it and indicate that it was made voluntarily (Bevan (1994) 98 Cr App R 354. **['Proper' Inferences of Guilt]** F20.49 Under the CJPO 1994, s. 35, 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 (s. 35(3)). Defendants whose \'physical or mental condition make it undesirable\' for them to give evidence are excluded from the operation of the section, together with those whose \'guilt is not in issue\' (s. 35(1)). 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. Subject to these exceptions, the accused must answer all proper questions or risk the drawing of inferences, and a judge may remind the accused of this duty, though not in an oppressive way. 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 (***Hamidi*** \[2010\] EWCA Crim 66). 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. [Accused with Physical or Mental Limitations] F20.50 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. The provision was considered in ***Friend*** \[1997\] 2 All ER 1011. 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, ). In ***Burnett*** \[2016\] EWCA Crim 1941, 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. ***Friend*** and ***Burnett*** both indicate that s. 35(1)(b) gives a wide discretion to a trial judge. 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. 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 (as in Dixon). 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 (Crown Court Compendium, ch. 17-5).One such rare case was ***Hamberger*** \[2017\] EWCA Crim 273, in which 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. F20.51 In ***Tabbakh*** \[2009\] EWCA Crim 464, the 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. In ***Mulindwa*** \[2017\] EWCA Crim 416, 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. Both ***Friend*** and the later decision in ***A*** \[1997\] Crim LR 883 require 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. - In R (DPP) v Kavanagh \[2005\] EWHC 820 (Admin), 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. **[Nature of Inference under s. 35]** F20.52 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. In ***Murray v DPP*** \[1994\] 1 WLR 1, a decision concerning the equivalent provision in the Criminal Evidence (Northern Ireland) Order 1988 (SI 1988 No. 1987, N.I. 20), 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 inference from s. 35]** F20.53 As with ss. 34, 36 and 37 of the CJPO 1994, the accused cannot be convicted solely on an inference drawn from a failure or refusal (s. 38(3): see F20.8). In ***Cowan*** \[1996\] QB 373, the Court of Appeal emphasised that the prosecution remain 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. 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 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. **[Drawing an inference: General Rule]** F20.54 In Cowan \[1996\] QB 373, the Court of Appeal rejected an argument that s. 35 should be permitted to operate in exceptional cases only. 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. - Thus, for example, 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) (see F20.50 et seq.), 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 Cowan was applied in ***Napper*** (1997) 161 JP 16. 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. **[No inference where Prosecution case is weak]** F20.55 It seems from the observations of Lord Slynn in Murray v DPP \[1994\] 1 WLR 1 (see F20.52) that 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. **[Strong inference where facts clearly call for explanation or are within the accused's knowledge]** F20.56 In **[Mutch]** \[1973\] 1 All ER 178, 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. *Note* *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* \[1981\] QB 720*.*