Criminal Litigation SGS 8 Inferences from Defendants Silence

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billsykes
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210149
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Criminal Litigation SGS 8 Inferences from Defendants Silence
Updated:
2013-03-30 10:40:11
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Criminal Litigation SGS
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Criminal Litigation SGS 8
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  1. Which of the following is INCORRECT?

    [A] The defendant’s silence at trial should be ignored in deciding whether the prosecution has established a prima facie case for him to answer.

    [B] Both the prosecution and the judge can comment on the defendant’s silence at trial.

    [C] If the defendant has previous convictions, the jury cannot draw an adverse inference from his failure to testify.

    [D] If the prosecution establish a prima facie case for the defendant to answer, and he has no good reason for failing to testify, then the jury may, if they see fit, hold his failure against him.
    [C] If the defendant has previous convictions, the jury cannot draw an adverse inference from his failure to testify.

    Incorrect. Nothing in s.35 or the associated case law (see, for example, Becouarn [2005] 1 WLR 2589) creates such a rule.
  2. Which of the following is INCORRECT?

    [A] Adverse inferences can be drawn from the defendant’s silence even if he remained silent on his solicitor’s advice.

    [B] S. 34 of the Criminal Justice and Public Order Act 1994 only applies to failures to mention facts which are later relied on in the defendant’s defence.

    [C] In deciding whether a defendant’s failure to mention facts is unreasonable, the defendant’s personal circumstances can be taken into account.

    [D] A defendant can be convicted on his silence alone, even if there is no other evidence.
    [D] A defendant can be convicted on his silence alone, even if there is no other evidence.

    Incorrect. See s.38 CJPOA 1994
  3. Margaret Briggs was arrested at her home address on suspicion of committing a burglary of a warehouse in a neighbouring village. The owner of the warehouse claims to recognise her from CCTV footage. When interviewed under caution by the police as to the presence of her fingerprints at the crime scene, and despite the interviewing officers giving her a ‘special warning’, Briggs remained silent. Briggs had the benefit of legal advice before and during the interview. Briggs was later charged with burglary, and at a subsequent court hearing pleaded not guilty to the charge. During her forthcoming trial Briggs will say that the reason why her fingerprints were found at the warehouse was that she had been there a week before the burglary, to visit a friend.

    Which of the following is CORRECT?

    [A] Adverse inferences may be drawn under s.36 Criminal Justice and Public Order Act 1994.

    [B] Adverse Inferences may be drawn under s.34 Criminal justice and Public Order Act 1994

    [C] Adverse Inferences may be drawn under s.37 Criminal justice and Public Order Act 1994.

    [D] No adverse inferences may be drawn in this case.
    [B] Adverse Inferences may be drawn under s.34 Criminal justice and Public Order Act 1994.

    Correct. Note that the facts of this case are such that no inferences can be drawn under ss.36 or 37 – the silence does not relate to marks found on the defendant or to her being found at/near the scene of the crime.
  4. Which of the following is CORRECT?

    [A] Adverse inferences can only be drawn when an accusation is put to a person by a police officer.

    [B] Adverse inferences can only be drawn when an accusation is put to a person following his arrest.

    [C] If a suspect is not cautioned by a police officer no adverse inference can be drawn under section 34 of the Criminal Justice and Public Order Act 1994 if he is silent when questioned by that officer. 

    [D] Adverse inferences cannot be made in respect of a defendant who is not represented by Counsel at trial.
    [C] If a suspect is not cautioned by a police officer no adverse inference can be drawn under section 34 of the Criminal Justice and Public Order Act 1994 if he is silent when questioned by that officer.

    CORRECT. This answer refers to statutory inferences. [A] and [B] are incorrect as inferences are still possible under the common law. The statement at [D] has no basis
  5. Does the accused have a right to silence?
    Yes, but there may be consequences if they choose to rely on it.

    Where the accused would reasonably be expected to answer questions relating to the charge and evidence against him, inference may be drawn.
  6. What does s. 34 of Criminal Justice and Public Order Act 1994 provide for?
    Inference may be draw from the accused's silence in custody, providing he is cautioned.

    The accused is under no duty to answer questions and the prosecution cannot rely on silence alone.
  7. Can the court draw inferences from the accused's silence in court?
    Yes, under s. 35 of CJPOA 1994.

    The defendant must first be warned of the consequences of his silence.

    If the defendant physical/mental condition makes it unreasonable to do so, then inferences cannot be drawn.
  8. When does s. 36 and 37 of CJPOA apply?
    At  or around the time the defendant was arrested.

    s. 36: failure to explain objects, substance and marks

    s. 37: failure to explain presence

    Both sections are subject to 'ordinary language caution'.

    • If at police station - must be given opportunity to talk to solicitor
  9. What are the consequences of the defence failing to provide advance notice of case (Defence Statement)?
    Inference may be drawn under s.16 of the Criminal Procedure and Investigations Act 1996
  10. Terrence Milligan has been arrested on suspicion of the rape and subsequent murder of a local prostitute, Karen Smith. The arrest took place when Milligan was found hiding under some bushes, some 20 yards from the crime scene. Once at the police station, after consultation with his solicitor, he agreed to his fingerprints being taken. As a result of evidence found at the crime scene the police asked Milligan to supply a sample of blood for DNA analysis. However, Milligan refused to provide one. In interview, Milligan made ‘no comment’ to all questions asked by the police, including requests to account for his presence under the bushes and for what appeared to be semen stains and blood found on the front of his trousers. Milligan was subsequently charged with rape and murder, however he did not provide a defence statement before or at trial. At trial, the prosecution adduce evidence (properly served on Milligan’s solicitors prior to trial and unchallenged by them) that the blood on Milligan’s trousers was that of Ms Smith. The prosecution also wish to adduce evidence that semen found at the crime scene and on Milligan’s trousers contained DNA that matched that of Milligan. This match resulted from a DNA sample taken from Milligan three years ago, following his arrest and prosecution for an offence of ABH for which he was subsequently acquitted. The prosecution accept that prior to his arrest for the current matters, the only other time that Milligan has been arrested was for the ABH matter. The defence challenge the admissibility of this DNA evidence. Milligan will give evidence, and will say that he had consensual sexual intercourse with Ms Smith, and that he ran away and hid when she was attacked by her pimp. He will say that it was during the attack that spatters of Ms Smith’s blood landed on his trousers.


    Can any inferences be drawn from Milligan’s refusal to provide a sample of blood? Give a reason for your answer (2 marks)

    Why might inferences be drawn from Milligan’s refusal to answer questions in interview? (3 marks)

    What is the consequence of failing to provide a defence statement before or at a trial in the Crown Court? Give a reason for your answer (2 marks)

    Give ONE example where adverse inferences would not be drawn (1 mark)

    Is the trial judge likely to allow the prosecution to adduce evidence of the sample of DNA taken from Milligan? Give a reason for your answer (2 marks)
    Can any inferences be drawn from Milligan’s refusal to provide a sample of blood? Give a reason for your answer (2 marks) Yes (1 mark). Pursuant to s.62(10) PACE 1984 (1 mark).

    Why might inferences be drawn from Milligan’s refusal to answer questions in interview? (3 marks) He will be giving evidence at trial on matters which he could reasonably have been expected to mention when questioned (1 mark). He failed to account for his presence at the crime scene (1 mark) and he failed to account for the stains on his trousers (1 mark).

    What is the consequence of failing to provide a defence statement before or at a trial in the Crown Court? Give a reason for your answer (2 marks) An adverse inference may be drawn (1 mark) under s.11(5)(b) CPIA 1996. 4. Shortly before the trial starts, Milligan asks you whether there are any circumstances in which adverse inferences would not be drawn where a defendant refuses to give evidence at trial.

    Give ONE example where adverse inferences would not be drawn (1 mark) Where it would be undesirable because of the defendant’s metal (or physical) condition.

    • Is the trial judge likely to allow the prosecution to adduce evidence of the sample of DNA taken from Milligan? Give a reason for your answer (2 marks) Yes (1 mark) The sample was not unlawfully retained (s64(1A) and s64(3) PACE 1984 and it’s use in the current investigation against Milligan is in accordance with s64(1A) PACE 1984, i.e. it is for the purpose of investigation of an offence (1 mark).

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