Chapter 13 Multiple Choice Questions

. What does the expression 'adverse inference' mean?

An unfavourable conclusion drawn from facts or statements.

A favourable conclusion drawn from facts or statements

It quite simply means that a jury is entitled to find the defendant guilty on the grounds that he has remained silent where the questions were legitimate and fairly put.

It quite simply means that a jury must find the defendant guilty on the grounds that he has remained silent where the questions were legitimate and fairly put.

. The Court of Appeal in Cowan [1996] QB 373 laid down certain principles relating to s. 35 of the Criminal Justice and Public Order Act 1994 and which, following Condron [1997] 1 WLR 827, also relate to s. 34.Please select all that apply.

The judge should explain to the jury that the defendant is obliged to give evidence and provide a specific direction to that effect, with further reference to Article 6(2) of the European Convention on Human Rights.

The judge must explain that, pursuant to s. 38(1) of the Criminal Justice and Public Order Act 1994, the accused's failure to give evidence cannot be sufficient in itself to prove his guilt.

The judge must make it clear that the jury must be satisfied that the prosecution has established 'a case to answer', based on the prosecution's evidence, before any inference against the accused may be drawn from the accused's failure to give evidence.

If the jury concludes, having regard to any explanation advanced to explain the accused's silence or the absence of explanation, that the accused's silence can only sensibly be attributed to the accused having concocted or fabricated his account, they may draw an adverse inference against him.

. At trial, a defendant accepted the prosecution case that the stabbing in question had happened in the road. The defendant had not mentioned this in her police interview. Therefore, the jury must be invited to draw an adverse inference under s. 34 of the Criminal Justice and Public Order Act 1994.

True

False

. A defendant made 'no comment' in his police interview. At his trial, his advocate cross-examined prosecution witnesses, putting to them a number of positive factual suggestions about relevant and important matters, which the witness did not accept. However, the defendant did not testify or call any witnesses in his defence. What is the legal position, in relation to s. 34 of the Criminal Justice and Public Order Act 1994?

The judge should direct the jury that it is entitled to draw adverse inferences from the defendant's silence in his police interview because the defendant failed to mention facts that were later put to witnesses in cross-examination.

'The judge should direct the jury that this is not a case to which s. 34 applies because, quite simply, the defendant did not testify and defendants must give evidence themselves in order for s. 34 to apply'.

The judge should direct the jury that the defendant is entitled to the privilege against self-incrimination and, therefore, no adverse inferences may be drawn from his failure to comment in his police station interview, notwithstanding the facts that were put to witnesses in cross-examination.

The judge should direct the jury that this is not a case to which s. 34 applies because the defendant did not testify or call any witnesses. The content of an advocate's cross-examination is not evidence and, accordingly, is irrelevant to the operation of s. 34.

. What is the legal position, in relation to s. 34 of the Criminal Justice and Public Order Act 1994, if a solicitor advises her client to make 'no comment' in his police interview, but the client later puts forward a defence in court?

No adverse inferences can be drawn if the defendant acted on legal advice.

No adverse inferences can be drawn if the defendant acted on legal advice, unless the defendant has waived legal professional privilege.

The fact that an accused has been advised by a solicitor not to disclose information does not, in itself, prevent an adverse inference from being drawn, though the jury may take into account the advice given by the solicitor in deciding whether it is reasonable to draw adverse inference.

The fact that an accused has been advised by a solicitor not to disclose information does not, in itself, prevent an adverse inference from being drawn. The jury may take into account the advice given by the solicitor in deciding whether it is reasonable to draw adverse inference, but the advice must be founded on 'soundly based objective reasons'.

. A defendant is charged with sexual activity with a child under 16. Under s. 36 of the Criminal Justice and Public Order Act 1994, adverse inferences may be drawn where the defendant failed to comment on the presence of his DNA on the girl's underwear.

True

False

. What is aMcGarry direction?

It is the mandatory direction that a trial judge must give to the jury to draw adverse inferences from the accused' silence in his police interview, where there is evidence that suggests the accused has lied in police interview and this supports other prosecution evidence.

It is the mandatory direction that a trial judge must give to the jury not to draw any adverse inferences from the accused's silence in his police interview. The need for it arises where the judge concludes that there is no evidence from which the jury could conclude that the accused has failed to mention a fact relied on in his defence.

It is the mandatory direction that a trial judge must give to the jury not to draw adverse inferences from the accused's silence in his police interview where the accused has answered some questions and then reverted to silence or making 'no comment'. This is a 'mixed statement' and is inadmissible.

It is the mandatory direction that a trial judge must give to the jury not to draw adverse inferences from the accused' silence where the accused was interviewed at a secure mental institution.

. An accused arrested for sexual assault provided a partial account of the incident in his police interview. At his trial he provided a fuller account of what happened. However, he had told a number of witnesses about it just after the alleged incident and before he was arrested. Therefore, in these circumstances, no adverse inferences can be drawn because he has already mentioned the relevant fact.

True

False

. John has been charged with a serious assault. When he was interviewed by the police his solicitor read out a prepared statement. This statement corresponded exactly with John's evidence at trial. Is the jury entitled to draw an adverse inference from John's failure to answer police questions in his police interview?

Yes, as the accused has failed to mention a fact that he later relied on in his defence at the trial. It must be 'mentioned' by the accused in response to police questioning and not by a solicitor or an appropriate adult.

Yes, as the accused has failed to mention a fact that he later relied on in his defence at the trial. To 'mention' means to 'respond to a specific question put' by the police and does not extend to a statement that has simply been read out by a solicitor or legal representative.

No, as it is implicit from the fact that the solicitor read out the statement that the solicitor must have advised the accused not to comment orally in the interview. No adverse inferences should be drawn from legal advice to remain silent, as that would be contrary to the rules on legal professional privilege.

No, as the accused has mentioned all the facts on which he later relied on in his defence. That he did not mention them specifically in response to police questions is immaterial.

. Priti has been charged with burglary. When she was interviewed by the police her solicitor read out a 'prepared statement'. This statement corresponded largely with Priti's evidence at trial. However, on the facts in this case there was a significant omission. The statement did not provide the name or any further details about the 'friend' Priti said accompanied her at the time of the offence. At trial, Priti provided full details of that 'friend'. Is the jury entitled to draw an adverse inference from Priti's failure to mention those details in her police interview?

Yes, as the accused has failed to mention a significant fact that she later relied on in her defence at the trial.

Yes, as the accused has failed to mention a fact that she later relied on in her defence at the trial. Adverse inferences may be drawn where there are any differences between a 'prepared statement' and the evidence at trial even if they are relatively small differences. The law in this area has been rightly described as 'exacting'.

No, as Priti has provided an answer to the questions asked by the police. So long as an 'account' has been provided by the accused no adverse inferences may be drawn. The purpose of the 1994 Act is to encourage suspects to provide an account of what happened and no more than that can be required.

No adverse inferences may be drawn provided that: (a) the accused signed the prepared statement; (b) the statement was endorsed by the solicitor, and (c) the statement was handed in to the custody officer following the interview and/or when the accused is charged with the offence. The statement may be handwritten or word processed but must be signed and dated by both the solicitor and the accused.

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