Out-of-court silence on arrest
Can an adverse inference be drawn from Lennie’s out-of-court silence when asked how his tee-shirt got torn and why he was limping? The following conditions of s 36 of the Criminal Justice and Public Order Act 1994 are satisfied.
Lennie was arrested by a constable: s 36(1)(a).
The constable reasonably believed that the condition of Lennie’s clothing (a tear in his tee-shirt) may have been attributable to the participation of Lennie in the commission of the attempted burglary specified by him: s 36(1)(a)(ii) and (b) and s 36(3). (The fact that Lennie was limping is not covered by s 36.)
However, the constable did not, in terms, inform Lennie of his belief as required by s 36(1)(d). He said that he believed that Lennie had committed attempted burglary and he asked how the tee-shirt got torn, but he did not say that he believed that the condition of the tee-shirt may have been attributable to Lennie’s participation in the commission of the offence. If this condition had been met, the jury could have been directed to draw such inferences as appeared proper. Even so, the defence would then have been likely to argue that no inference should be drawn given that Lennie has a very low IQ and a limited vocabulary and therefore would have been unlikely to have understood the officer when, in seeking to comply with the condition in s 36(4), he had said: ‘Inferences can be drawn’. The prosecution would be likely to counter that immediately before that, the constable had said, in the ‘ordinary language’ that s 36(4) requires, and which Lennie would have understood: ‘..that can be used against you at your trial.’
Out-of-court silence in interview under caution
Can an adverse inference be drawn from Lennie’s out-of-court silence in interview under caution when asked to account for his presence at the place where he was arrested? The conditions in s 34 of the 1994 Act are satisfied.
Evidence can be given that Lennie, on being questioned under caution by a constable trying to discover whether or by whom an offence had been committed, failed to mention facts relied on in his defence, namely that just before his arrest he had been playing football with his mates in the playing field next to the builder’s yard etc: s 34(1)(a).
Whether there are facts Lennie relied on in his defence, whether he failed to mention them on being questioned under caution and whether they are facts that in the circumstances existing at the time he could reasonably have been expected to mention, are all questions of fact for the jury: R v Argent  2 Cr App R 27.
Were the facts in this case facts that Lennie could reasonably have been expected to have mentioned when questioned? The defence will say ‘no’ on the basis that Lennie’s solicitor advised him not to answer. However, a bare assertion by an accused that he did not answer on legal advice is unlikely to prevent an adverse inference from being drawn: R v Condron and Condron  1 WLR 827, CA. The test is not the correctness of the solicitor’s advice, but the reasonableness of the accused’s conduct in all the circumstances, including in this case Lennie’s low IQ (how low?), his limited vocabulary, his ability to understand what was said to him and any other relevant personal characteristics, such as age (how old was he?) or confusion. Even if Lennie genuinely relied on the legal advice to remain silent, an inference may still be drawn if the jury are sure that the true reason for silence was that he had no satisfactory explanation consistent with innocence to give: R v Hoare  1 Cr App R 355, CA and R v Beckles  1 All ER 705.
The judge must remind the jury of the words of the caution given to Lennie: R v Chenia  1 All ER 543. She should also direct that an adverse inference can only be drawn if, despite Lennie saying that he acted on legal advice, they are sure that his silence can only sensibly be attributed to him having no answer or no answer that would stand up to questioning and investigation: Condron v UK  31 EHRR 1. See also R v Bresa  Crim LR 179. The judge should clearly identify the inferences that the jury may draw, ie that what Lennie said about playing football was either invented after the interview or was in his mind at the time of the interview but he knew that it would not stand up to questioning and investigation: R v Petkar  1 Cr App R 270. The jury should also be told that if an inference is drawn, they should not convict wholly on the strength of it (the prosecution must establish a case to answer – see R v Petkar, ibid) or mainly on the strength of it. What other incriminating evidence do the prosecution have in this case? For example, has Bob identified Lennie at a formal identification procedure?
The judge’s proposed direction should be discussed with the advocates before closing speeches: R v Chenia, ibid.
See generally The Modern Law of Evidence 13th ed at pp506-521.