INFERENCES FROM SILENCE NOTES
1. Evidential Significance of the D’s lies and directions that should be given to a jury
Motive
Evidence of motive may be admissible notwithstanding that the motive is irrational. It does
not become irrelevant simply because others had the same motive. Thus, in the case of a feud
between neighbouring families, the motive may be shared by members of a family, including
the accused, but it is still relevant to show that he had a reason to do what is alleged (Myers
v R [2015]).
Evidence of motive may be admissible notwithstanding that it reveals the accused's criminal
disposition (provided that the evidence of BC is admissible under the CJA 2003). Evidence
that the accused lacked a motive to commit the crime charged may be admissible to show
the comparative improbability of his having committed it (Grant (1865)).
He may also adduce evidence that someone else had such a motive e.g. Greenwood [2004]
→ accused entitled to adduce evidence to show the V’s ex-boyfriend was near the murder
scene and had motive. It does not follow that evidence of motive (or its absence) is necessarily
relevant to the facts in issue on a particular charge e.g. indecency of a photo (Kerr (1989).
Lies
Lies told by the accused, on their own, do not make a positive case of any crime. However,
they may indicate a consciousness of guilt and be relied upon by P as evidence supportive of
guilt. E.g. Goodway [1993] →the accused's lies to the police as to his whereabouts at the
time of the offence were used in support of the identification evidence.
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 his credibility (and not only
when it is relied on as corroboration or as support for identification evidence), a Lucas ([1981]
direction should generally be given to the jury to satisfy itself that:
(a) The lie was deliberate and must relate to a material issue.
(b) There was no innocent motive for the lie, reminding them that people sometimes lie,
e.g. in an attempt to bolster up a just cause, or out of shame or conceal behaviour.
(c) The lie must be established by evidence other than that of the witness who is to be
corroborated.
Lucas directions should usually be given in the following situations:
• When the defence is an alibi;
• Where the judge considers it necessary to suggest the judge should look for corroboration
of one piece of evidence from other evidence in the case and amongst that evidence
draws attention to the lies allegedly told by the D
• Where P seeks to show something said by D was a lie and rely on that lie as evidence of
guilt in relation to the relevant charge; or
• Where the judge evisages that the jury may find the lie as evidence of guilt.
,Reszpondek [2010] → evidence R had told many lies and had been involved in acts of
concealment of the death, 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
the victim's death might have resulted from manslaughter.
A direction need not be given where it is futile 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. OR where the accused has offered an explanation for his lies and the judge
has dealt with that explanation fairly in his summing up.
RIGHT TO SILENCE
The right to silence → a privilege against self-incrimination. Has been held to lie at the heart
of the notion of a fair procedure under Art 6 ECHR (Murray v UK (1996). Not an absolute
right BUT the extent of s34-38 CJPOA 1994 operate consistently with a right to a fair trial
still matter of debate.
AT CL → no inferences were generally permitted to be drawn from the exercise of the right
to silence either by a suspect under investigation or an accused at trial. S34-38 now specify
the circumstances in which AI may be drawn from the exercise of a primary right. Where the
statutory scheme does not apply, the CL rule still applies (McGarry [1999]). 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 (Condron v
UK (2001)). The ECtHR accepted the right to silence could not of itself prevent the accused's
silence, in cases which clearly call for an explanation by him, being taken into account in
assessing the persuasiveness of the P evidence, but also stressed that a fair procedure (under
Article 6) required 'particular caution' on the part of a domestic court before invoking the
accused's silence against him (Condron).
2. Inferences from the defendant’s failure to mention facts when questioned
S34 CJPOA 1994→ Failure to reveal facts afterwards relied upon in court. Accused withholds
matters relevant to his defence when questioned in order to present at trial.
s. 34
(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 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 s.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, (2) below applies.
(2) The court in determining whether there is no case to answer or the court or jury in
determining whether the accused is guilty of the offence charge, may draw such
inferences from the failure as appear proper.
(2A) Where A was at an authorised place of detention at the time of the failure, (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 (1) above.
SO→ If a D:
• Before charge/on being cautioned
• Whilst under caution
• Whilst being questioned by a police officer
• About his suspected involvement in the offence
• Fails to mention a fact
• That he could reasonably be expected to mention in the circumstances
• Later relies on that fact as part of his defence
• The tribunal of fact can draw any inferences that appear proper
From the accused's failure to reveal specific fact (s. 34(2))
S34 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: it does not apply simply because the
accused has declined to answer questions. Also, cannot draw inferences if D mentions at court
a fact if PO does not ask the right q about it as defence can say well he wasn’t asked about it
(no requirement to volunteer the fact in question).
s.34 applies also where the accused, though he discloses his defence, fails to mention a
particular fact that he thereafter relies upon. Here, there is a discretion whether to give a
warning. E.g. Abdalla [2007] → A immediately disclosed his defence of SD but neglected to
mention that he believed V was armed with a hammer. Judge proceeded without a direction.
The mischief at which s34 is primary directed is the positive defence following a no comment
interview. Counsel should not complicate trials and summings-up by invoking s34 unless the
merits of the case require it. In Johnson [2017]→ COA said it would have been 'wiser to
avoid' a direction where J 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.
F20.6 Adverse Inference Consistent with Right to Fair Trial
Decisions of the ECtHR have confirmed that the mere fact that a TJ leaves a jury with the
option of drawing an AI from silence in interview is not incompatible with the requirements
of a fair trial. Whether the drawing of AI infringes the 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
1. Evidential Significance of the D’s lies and directions that should be given to a jury
Motive
Evidence of motive may be admissible notwithstanding that the motive is irrational. It does
not become irrelevant simply because others had the same motive. Thus, in the case of a feud
between neighbouring families, the motive may be shared by members of a family, including
the accused, but it is still relevant to show that he had a reason to do what is alleged (Myers
v R [2015]).
Evidence of motive may be admissible notwithstanding that it reveals the accused's criminal
disposition (provided that the evidence of BC is admissible under the CJA 2003). Evidence
that the accused lacked a motive to commit the crime charged may be admissible to show
the comparative improbability of his having committed it (Grant (1865)).
He may also adduce evidence that someone else had such a motive e.g. Greenwood [2004]
→ accused entitled to adduce evidence to show the V’s ex-boyfriend was near the murder
scene and had motive. It does not follow that evidence of motive (or its absence) is necessarily
relevant to the facts in issue on a particular charge e.g. indecency of a photo (Kerr (1989).
Lies
Lies told by the accused, on their own, do not make a positive case of any crime. However,
they may indicate a consciousness of guilt and be relied upon by P as evidence supportive of
guilt. E.g. Goodway [1993] →the accused's lies to the police as to his whereabouts at the
time of the offence were used in support of the identification evidence.
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 his credibility (and not only
when it is relied on as corroboration or as support for identification evidence), a Lucas ([1981]
direction should generally be given to the jury to satisfy itself that:
(a) The lie was deliberate and must relate to a material issue.
(b) There was no innocent motive for the lie, reminding them that people sometimes lie,
e.g. in an attempt to bolster up a just cause, or out of shame or conceal behaviour.
(c) The lie must be established by evidence other than that of the witness who is to be
corroborated.
Lucas directions should usually be given in the following situations:
• When the defence is an alibi;
• Where the judge considers it necessary to suggest the judge should look for corroboration
of one piece of evidence from other evidence in the case and amongst that evidence
draws attention to the lies allegedly told by the D
• Where P seeks to show something said by D was a lie and rely on that lie as evidence of
guilt in relation to the relevant charge; or
• Where the judge evisages that the jury may find the lie as evidence of guilt.
,Reszpondek [2010] → evidence R had told many lies and had been involved in acts of
concealment of the death, 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
the victim's death might have resulted from manslaughter.
A direction need not be given where it is futile 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. OR where the accused has offered an explanation for his lies and the judge
has dealt with that explanation fairly in his summing up.
RIGHT TO SILENCE
The right to silence → a privilege against self-incrimination. Has been held to lie at the heart
of the notion of a fair procedure under Art 6 ECHR (Murray v UK (1996). Not an absolute
right BUT the extent of s34-38 CJPOA 1994 operate consistently with a right to a fair trial
still matter of debate.
AT CL → no inferences were generally permitted to be drawn from the exercise of the right
to silence either by a suspect under investigation or an accused at trial. S34-38 now specify
the circumstances in which AI may be drawn from the exercise of a primary right. Where the
statutory scheme does not apply, the CL rule still applies (McGarry [1999]). 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 (Condron v
UK (2001)). The ECtHR accepted the right to silence could not of itself prevent the accused's
silence, in cases which clearly call for an explanation by him, being taken into account in
assessing the persuasiveness of the P evidence, but also stressed that a fair procedure (under
Article 6) required 'particular caution' on the part of a domestic court before invoking the
accused's silence against him (Condron).
2. Inferences from the defendant’s failure to mention facts when questioned
S34 CJPOA 1994→ Failure to reveal facts afterwards relied upon in court. Accused withholds
matters relevant to his defence when questioned in order to present at trial.
s. 34
(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 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 s.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, (2) below applies.
(2) The court in determining whether there is no case to answer or the court or jury in
determining whether the accused is guilty of the offence charge, may draw such
inferences from the failure as appear proper.
(2A) Where A was at an authorised place of detention at the time of the failure, (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 (1) above.
SO→ If a D:
• Before charge/on being cautioned
• Whilst under caution
• Whilst being questioned by a police officer
• About his suspected involvement in the offence
• Fails to mention a fact
• That he could reasonably be expected to mention in the circumstances
• Later relies on that fact as part of his defence
• The tribunal of fact can draw any inferences that appear proper
From the accused's failure to reveal specific fact (s. 34(2))
S34 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: it does not apply simply because the
accused has declined to answer questions. Also, cannot draw inferences if D mentions at court
a fact if PO does not ask the right q about it as defence can say well he wasn’t asked about it
(no requirement to volunteer the fact in question).
s.34 applies also where the accused, though he discloses his defence, fails to mention a
particular fact that he thereafter relies upon. Here, there is a discretion whether to give a
warning. E.g. Abdalla [2007] → A immediately disclosed his defence of SD but neglected to
mention that he believed V was armed with a hammer. Judge proceeded without a direction.
The mischief at which s34 is primary directed is the positive defence following a no comment
interview. Counsel should not complicate trials and summings-up by invoking s34 unless the
merits of the case require it. In Johnson [2017]→ COA said it would have been 'wiser to
avoid' a direction where J 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.
F20.6 Adverse Inference Consistent with Right to Fair Trial
Decisions of the ECtHR have confirmed that the mere fact that a TJ leaves a jury with the
option of drawing an AI from silence in interview is not incompatible with the requirements
of a fair trial. Whether the drawing of AI infringes the 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
