Multiple-Choice Questions Chapter 7
Criminal and Civil Evidence 12th ed (2011-2012)
(a) Which one of the following propositions is true?
At common law:
[a] the silence of the accused in response to an allegation put to him by another member of the public can never give rise to an inference against him;
[b] the silence of the accused in response to an allegation put to him by another member of the public will, as a matter of law, automatically prove his guilt;
[c] the silence of the accused in response to an allegation put to him by another member of the public may in appropriate circumstances be capable of giving rise to an inference against him;
[d] the jury must never in any circumstances be made aware that the accused remained silent in the face of an allegation put to him by another member of the public.
ANSWER [c]. See textbook 7.1.1. At common law, it is possible for the accused’s silence in the face of an allegation made by a person speaking to him on equal terms to amount to an implied admission that the allegation is true in circumstances in which the accused could reasonably be expected to respond to the allegation.
(b) Which one of the following four propositions is true?
[a] A court may draw an inference from silence in the context of civil proceedings but not in criminal proceedings.
[b] A court may draw an inference from silence in the context of criminal proceedings, but not in civil proceedings.
[c] A court may draw an inference from silence where a statutory power so provides, but may not do so at common law.
[d] None of the above three propositions is true.
ANSWER [d]. See textbook 7.1.1 and 7.1.2. Both civil and criminal courts may, in appropriate circumstances, draw inferences from silence and whilst statute does make provision for the drawing of inferences from silence, inferences may also be drawn at common law.
(c) Grace is charged with burglary. At the police station she requests legal representation but she is not permitted to see a solicitor. When the police interview Grace, they fail to caution her and she refuses to answer any questions. At her trial she pleads not guilty but does not testify and does not rely upon any fact in her defence, merely putting the prosecution to proof.
Which one of the following propositions is false?
[a] An inference should not be drawn under section 34 of the Criminal Justice and Public Order Act 1994 because Grace was not questioned under caution.
[b] An inference should not be drawn under section 34 of the Criminal Justice and Public Order Act 1994 because Grace was not permitted to see a solicitor.
[c] An inference should not be drawn under section 34 of the Criminal Justice and Public Order Act 1994 because Grace did not rely in her defence upon a fact that she failed to mention when questioned or charged.
[d] None of the above propositions is true.
The correct answer is [d]. See textbook 7.2.2.1.2. An inference should not be drawn under s.34 in any of these circumstances (in relation to [a] and [b] see, textbook respectively, 7.2.2.1 and 7.2.2.2.1.1).
(d) Dan is charged with robbery. Prior to being charged, the police twice interviewed Dan under caution in the presence of his solicitor, the second interview taking place two weeks after the first interview, when Dan was re-arrested. On the first occasion, Dan, acting on the advice of his solicitor, gave a “no comment interview”. On the second occasion, whilst Dan did not answer any questions himself, Dan, via a prepared statement that his solicitor read out at the start of the interview, told the police that he had not committed the robbery and gave details of an alibi. At Dan’s trial, Dan intends to rely upon the alibi in his defence.
Consider the following three propositions.
(i) The jury will not be entitled to draw an inference under section 34 of the Criminal Justice and Public Order Act 1994 from Dan’s failure to mention the alibi during the first interview because Dan, via the prepared statement which his solicitor read out, mentioned the alibi during the second interview.
(ii) The jury will not be entitled to draw an inference under section 34 of the Criminal Justice and Public Order Act 1994 from Dan’s failure to mention the alibi during the first interview because Dan intends to rely upon the alibi in his defence at his trial.
(iii) The jury will not be entitled to draw an inference under section 34 of the Criminal Justice and Public Order Act 1994 from Dan’s failure to mention the alibi during the first interview because Dan’s solicitor advised him to give a “no comment interview”.
(iv) Even if Dan’s solicitor had read out the prepared statement at the start of the first interview, jury would have been entitled to draw an inference under section 34 of the Criminal Justice and Public Order Act 1994 from Dan’s failure to mention the alibi during the first interview because he gave a “no comment” interview.
Which of the above propositions is/are true?
[a] (i),(ii) and (iii) only. [b] (iv) only. [c] (iii) only. [d] None of them is true.
The correct answer is [d]. See textbook 7.2.2.1.4. The judge may permit the jury to draw an inference under s.34 even though Dan, via the prepared statement, mentioned the alibi during the second interview (i.e. they could infer that he had had no alibi at the time of the first interview and had fabricated the alibi by the time of the second interview). The fact that Dan intends to rely on the alibi at his trial is the very reason why the jury are entitled to draw the inference under s.34 (see textbook 7.2.2.1.2). Whether Dan could reasonably have been expected to mention the alibi in the context of his solicitor’s advice is a question which the jury will be required to determine when deciding whether to draw an inference under section 34, the question for the jury being whether he genuinely and reasonably relied upon the advice (see textbook 7.2.2.1.3.1). Finally, if the details of the alibi on which Dan relied at his trial had been given during a prepared statement at the start of the first interview, this would not appear to leave any room for the drawing of a s.34 inference in relation to the alibi.
(e) Wallis, being suspected of the murder of Arun, was interviewed at Newtown police station under caution in the presence of his solicitor, but refused to answer any questions. The police, in a breach of Code C, failed to tape record the interview. At his trial at Newtown Crown Court, Wallis pleaded not guilty and relied upon an alibi. He claimed that he had not wanted to answer any questions until he was sure that the murder had not been committed by Arun’s wife, Brenda, with whom Wallis was having an affair, as Wallis did not want to do anything to incriminate Brenda.
Consider the following three propositions.
(i) If the judge excludes evidence of the interview under section 78 of the Police and Criminal Evidence Act 1984, there will be no scope for the drawing of an inference under section 34 of the Criminal Justice and Public Order Act 1994.
(ii) If the judge admits evidence of the interview the jury may be entitled to infer, under 34 of the Criminal Justice and Public Order Act 1994, that the alibi was fabricated by Wallis.
(iii) The jury should not draw an inference under section 34 of the Criminal Justice and Public Order Act 1994 if they are not sure that Wallis was silent either because he had no answer to the police questions or had none that would withstand questioning and investigation.
(iv) The accused should not be convicted solely or mainly upon the basis of an inference under section 34 of the Criminal Justice and Public Order Act 1994.
Which of the above propositions is/are true?
[a] They are all true. [b] (i) and (ii) only. [c] (i) and (iii) only. [d] (iv) only.
The correct answer is [a]. See textbook 7.2.2.2.2. There will be no scope for the drawing of an inference under s.34 if evidence of the interview is excluded under s.78 (see textbook 7.2.2.2.1, above). If evidence of the interview is admitted, the jury may be entitled to draw an inference of recent fabrication under s.34 (see textbook 7.2.2.2, above). The jury should not draw an inference under s.34 unless they are sure that Wallis was silent either because he had no answer to the police questions or had none that would withstand questioning and investigation (see textbook 7.2.2.2.2, above). The accused should not be convicted solely or mainly upon the basis of a s.34 inference (see textbook above).
(f) Danish is charged with burglary. Danish chooses to testify. When counsel for the prosecution cross-examines Danish, he asks Danish whether, at the police station, Danish confessed to his solicitor during a privileged conversation between Danish and his solicitor. Danish refuses to answer. The trial judge directs the jury that an inference can be drawn under section 35 of the Criminal Justice and Public Order Act 1994 in respect of Danish’s failure to answer the question.
Consider the following two propositions.
(i) An inference may only be drawn under section 35 where the accused does not testify.
(ii) Danish had good cause for refusing to answer the question and thus the jury should not have been permitted to draw an inference under section 35 in respect of Danish’s refusal to answer it.
Which of the above propositions is/are true?
[a] Neither of them are true. [b] They are both true. [c] (i) only. [d] (ii) only.
ANSWER [d]. See textbook 7.2.3 and 7.2.3.2. An inference may be drawn under s.35 where the accused does testify but refuses to answer a question without good cause. A claim of legal professional privilege amounts to good cause however and, consequently, the judge should not have permitted the jury to draw an inference from D’s refusal to answer.
(g) Which one of the following propositions is true?
Where a person accused of a criminal offence is of low IQ and chooses not to testify at his trial:
[a] the trial judge is not in any circumstances entitled to permit the jury to draw an inference under section 35(3) of the Criminal Justice and Public Order Act 1994;
[b] the jury may be entitled to draw an inference under section 35(3) of the Criminal Justice and Public Order Act 1994;
[c] his failure to testify, without more, entitles the jury to find him guilty;
[d] the jury should take his failure to testify into account when determining whether the accused has a case to answer.
The correct answer is [b]. See textbook 7.2.3.2.2. The jury may be entitled to draw an inference in such circumstances as the fact that the accused is of low I.Q. does not necessarily mean that his mental condition makes it undesirable for him to give evidence (see 7.2.3.1, above). The jury should not convict solely or mainly on the basis of a s.35 inference (see textbook 7.2.3.2). The jury should not draw a s.35 inference when determining whether the accused has a case to answer. Rather, the jury may only draw an inference under s.35 if, before drawing such an inference, they are sure that the accused has a case to answer (see textbook).
(h) Dawn, who is suspected of stealing a valuable diamond necklace in Newcastle, is arrested by Constable Patel in a coffee bar in London. Following the arrest the police find the stolen necklace in a public telephone box on a street near to Dawn’s flat in Leeds. At the police station, Dawn requests legal advice but her request is refused and she is interviewed in the absence of a solicitor. Constable Chan fails to give Dawn the special warning that is required for the purposes of section 36 of the Criminal Justice and Public Order Act 1994, but still asks her to account for the presence of the necklace in the telephone box. Dawn does not answer. At Dawn’s trial she does not testify and does not adduce any evidence concerning the presence of the necklace in the telephone box.
Which one of the following propositions is false?
[a] The jury should not draw an inference under section 36 of the Criminal Justice and Public Order Act 1994 because the necklace was not in Dawn’s possession etc at the time when she was arrested.
[b] The jury should not draw an inference under section 36 of the Criminal Justice and Public Order Act 1994 because Dawn was denied access to legal advice.
[c] The jury should not draw an inference under section 36 of the Criminal Justice and Public Order Act 1994 because Dawn was not given the special warning.
[d] The jury should not draw an inference under section 36 of the Criminal Justice and Public Order Act 1994 because Dawn did not adduce any evidence concerning the presence of the necklace in the telephone box.
The correct answer is [d]. See textbook 7.2.4.2.2. A s.36 inference cannot be drawn if the necklace was not in Dawn’s possession etc at the time of her arrest (see 7.2.4.1, above), if she was denied access to legal advice (see textbook 7.2.4.1.1) or if she was not given the requisite special warning (see textbook), but, unlike s..34, s.36 does not require that Dawn rely upon a fact in her defence.
(i) Jasper is charged with the murder of Jane by stabbing. When the police interviewed him in the presence of his solicitor, they gave him the special warning that is required for the purposes of section 36 of the Criminal Justice and Public Order Act 1994 and asked him to account for the presence of bloodstains on his clothes, which he failed to do.
Consider the following three propositions.
(i) If the judge directs the jury under section 36, he should make clear to them that they are not entitled to convict solely on the basis of an inference under section 36.
(ii) If the judge directs the jury under section 36, he should make clear to them that they are not entitled to convict mainly on the basis of an inference under section 36.