Inferences

Question 1

What is an adverse inference?

Answer 1

A common sense conclusion that is adverse to the interests of a party in proceedings.

Criminal Justice and Public Order Act

Question 2

When can inferences be drawn: Section 34

Answer 2

Allows inference to be drawn by jury and magistrates when D later relies on a fact in their defence that was not offered at time of questioning.
Court does not have to draw inference but if it does, any inference drawn must be ‘proper’. Inference can range from:
* an acceptance that defence presented in court is true but D chose not to reveal it in their interview to
* an inference that D’s account is untrue and they are in fact guilty

Question 3

Cautioned

Answer 3

Interviews must be carried out under caution, person must be cautioned (not having to say anythign but may harm their defence) they are asked any questions about suspected involvement - cautioned againt after recommencement of an interview.

• if person is not cautioned = no inference can be drawn

Question 4

When is it reasonable to have mentioned?

Answer 4

Inferenence can be made it but must have been reasonable to mention the fact at the time, bearing in mind all circumstances existing at the time = widely interpreted

Law Society provides guidance on this:
* what disclosure had been made to suspect, their lawyer and by police (“did they know what case they had to answer)
* what info prosecution can demonstrate suspect knew at time of questioning and charge
* condition and circumstances of suspect (stressed, tired or intoxicated)
* any legal advise suspect received (if lawyer advised them to remain silent, then may not be reasonabel to expect them to speak)

R v Argent

Question 5

Effect of an adverse inference?

Answer 5

Ultimate effect is that it undermines their defence - when jury and magistartes draw an adverse inference, they are saying:
* explanation given at trial has been fabricated since time of interview
* D withheld account at interview as they knew it would not stand up to police questioning
* at time of interview, D has* no reasonable explanation* which would refute prosecution case

Question 6

When can inferences be drawn: Section 36 & 37

Answer 6

36: Inference can be made when suspect fails to account for a mark, object or sustance found at time of arrest.

37: Inference can be made when suspect fails to account for their presence on arrest at a particular place or about time offence was allegedly committed

Question 7

Inferences under 36 & 37?

Answer 7

• restrictively worded - require D to be given an ‘ordinary language caution’ (special warning):
  
  • what offence is being investigated
  • what fact they are being asked to account for
  • this fact may be due to them taking part in commission of the offence
  • a court may draw proper inference if they fail or refuse to account for this fact and,
  • a record is being made of the interview and may be given in evidence if they are brought to trial.

Question 8

Saefguards?

Answer 8

Section 38: D may be convicted solely based on adverse inference.
Also, inference cannot be drawn where suspect has not been allowed access to legal advice.

Question 9

No trial = no inferences

Answer 9

• adverse inference only becomes relevant if D has trial - if case never gets to trial or client pleads guilty then adverse inference are irrelevant.