Criminal Justice and Public Order Act (CJPOA) 1994
Section 34
Section 34 allows an inference to be drawn if a suspect is silent when questioned under caution prior to charge and subsequently relies upon a relevant fact at Court, which he or she could reasonably have been expected to mention when questioned. Just because a suspect declines to answer questions, does not automatically mean that an adverse inference can be drawn. It is only when he or she later seeks to put forward an account or explanation that the adverse inference provision is triggered.
Section 35
Section 35 allows an inference to be drawn when a Defendant is silent at trial. However, this section prevents an inference from being drawn when it appears to the Court that "the physical or mental condition of the accused makes it undesirable for him to give evidence."
The court is required to satisfy itself that the defendant is aware that the failure to give evidence or to answer questions without good reason may lead to inferences being drawn against him or her.
Sections 36/37
Section 36 allows an inference to be drawn when a person fails or refuses to account for objects, substances or marks found:
- On his person
- In/on his clothing or footwear
- Otherwise in his possession; or
- In any place at the time of his arrest
An investigating officer must reasonably believe that the presence of such a mark, or substance or object may be attributable to that person's participation in the commission of an offence specified by the officer.
Section 37 allows an inference to be drawn when a Defendant fails or refuses to account for his presence at a particular place where it is believed that he may have committed an offence.
Section 5 of the Domestic Violence, Crime and Victims Act (DVCVA) 2004
Section 6 and 6A of the DVCVA 2004 provides for inferences to be drawn where a person fails to testify when charged with an offence under Section 5 of that Act (causing or allowing a child or vulnerable adult to die or suffer physical harm).
Legal Advice to be Silent
To avoid the drawing of an adverse inference, some Defendants will state that they remained silent because they were advised to do so by their legal advisor. However, such a course will not necessarily avoid the application of Section 34 of the CJPOA 1994. In R v Hoare and Pierce [2004] EWCA Crim 784, the Court of Appeal held that when such an explanation is put forward, a jury should consider whether it was reasonable for a defendant to rely on such advice.
This principle was further developed in R v Beckles [2005] 1 WLR 2829, in which the Court of Appeal set out a two-stage test for juries to consider before drawing an adverse inference:
- Did the Defendant genuinely rely on the legal advice, i.e. did they accept the advice and believe that they were entitled to follow it?
- Was it reasonable for the Defendant to rely on the advice?
By way of example, a Defendant may be acting unreasonably if he relied on the legal advice to remain silent because he had no explanation to give and the advice suited his own purposes.
Reasonableness does not depend on whether the advice was legally correct or whether it complied with the Law Society's guidelines. (See R v Argent [1997] Crim.L.R. 449 CA and R v Roble [1997] Crim.L.R. 449, CA).