Summary Criminal Litigation - Inferences from the defendant’s silence and other conduct
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Course
Bar Practice Course
Institution
University Of Law (ULaw)
1. evidential significance of the defendant’s lies and directions that should be given to the jury
2. inferences from the defendant’s failure to mention facts when questioned
3. inferences from the defendant’s failure to account for objects, substances and marks and from the defendant’s
...
Syllabus 17: Inferences from the defendant’s silence and other conduct
1. Lies
[F1.25- F1.26]
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 to merely reflecting on the accused credibility, a Lucas direction should
generally be given to the jury: Jury should be reminded that people sometimes lie.
Lucas direction is usually required in 4 situations:
➔ Where the defence relies on an alibi
➔ Where judge considers it desirable or necessary to suggest that the jury should look for support
or corroboration of once piece of evidence from other evidence in the case and amongst that
other evidence draws attention to lies told or allegedly told by th e defendant.
➔ Prosecution seek to show that something said, either in or out of court in relation to a separate
and distinct issue was a lie and to rely on that lie as evidence of guilt in relation to the charge
which is sought to be proved.
➔ Where although the prosecution have not adopted the approach to which we have just referred,
the judge reasonably envisages that there is a real danged that the jury may do so.
Two points in the direction should be made:
• The lie must be admitted or proved beyond a reasonable doubt
• The mere fact that the accused lied is not in itself evidence of guilt since defendants lie for
innocent reasons.
2. s.38 Criminal Justice and Public Order Act 1994
(3)A person shall not have the proceedings against him transferred to the Crown Court for trial, have a
case to answer or be convicted of an offence solely on an inference drawn from such a failure or
refusal as is mentioned in section 34(2), 35(3), 36(2) or 37(2).
(4)A judge shall not refuse to grant such an application as is mentioned in section 34(2)(b), 36(2)(b)
and 37(2)(b) solely on an inference drawn from such a failure as is mentioned in section 34(2), 36(2)
or 37(2).
3. s.34 Criminal Justice and Public Order Act 1994
Accused withholds when questioned matters that are subsequently introduced in support of a defence
at trial.
When does s.34 apply?
- At any time before D is charged (including during a PS interview) or when D is charged or
told he will be prosecuted;
- D failed to mention a fact;
- In all the circumstances D could reasonably have been expected to mention the fact; and
- During a trial, D relied upon the facts in question.
= If all of these applied, s.34 applies, and jury will be told that they can draw an adverse inference.
Have to wait until the D relied upon it a trial for this matter.
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