Adverse inferences – A guide

What is an adverse inference?

An adverse inference refers to the conclusion drawn by a court from the absence or withholding of evidence that would normally be expected to be presented. It implies that the missing evidence could have been unfavourable to the party withholding it.

In the context of a criminal case, adverse inferences are often drawn when a defendant fails to provide information or evidence either during interview or trial that they should reasonably have been able to present. This failure to disclose or address certain evidence can lead the court to infer that the missing evidence would not support the defendant’s case.

Adverse inferences can have significant implications for the outcome of a trial, impacting the credibility and strength of the defence case.

When might an adverse inference be drawn against a suspect?

The Criminal Justice and Public Order Act 1994 sets out the different circumstances when an adverse inference may be drawn.

These are as follows:

• A defendant’s failure to mention facts when questioned (interviewed) or charged;
• A defendant’s silence at trial;
• A defendant’s refusal or failure to account for objects, substances or marks;
• A defendant’s refusal or failure to account for his or her presence at a particular place.

Adverse inference due to silence when interviewed

Section 34 of the CJPOA 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 they could reasonably have been expected to mention when interviewed by police.

Just because a suspect declines to answer questions, does not automatically mean that an adverse inference can be drawn. It is only when they later seek to put forward an account or explanation (not previously put forward) that the adverse inference provision is triggered.

This would cover any alleged fact which was in issue and put forward as part of the defence case.

An adverse inference may only be drawn where questions have been put to the suspect. Therefore, this section does not apply to a suspect who refused to leave his cell to be interviewed. However, the position would be different if the police had asked questions in the cell.

An inference can also be drawn when a defendant is silent on charge but later relies upon a relevant fact at court which he or she could reasonably have been expected to mention when questioned.

Adverse inference from silence during trial

Section 35 of the CJPOA 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.

There might be circumstances in which it might not be reasonable to expect the defendant to mention relevant facts. Special care should be taken when considering cases involving vulnerable defendants such as youths or those with mental health issues.

Where a Defendant chooses not to give evidence in their defence in a crown court trial the following steps must be taken prior to an adverse inference being drawn under section 35:

1. The judge must tell the jury that the burden of proof remains upon the prosecution throughout and what the required standard is.
2. The judge must make clear to the jury that the defendant has the right to remain silent and that it is his or her choice;
3. An inference from failure to give evidence cannot, on its own, prove guilt;
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. The jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case; and
5. If, having considered the defence case, the jury concludes that the silence can only sensibly be attributed to the Defendant’s having no answer or none that would stand up to cross-examination; they may draw an adverse inference.

Failure to account for objects, substances or marks found

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.

Failure to account for presence at a particular place

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.

What are the six necessary conditions before an adverse inference can be drawn?

Before an adverse inference can be drawn the following conditions must apply:

• There must be proceedings against a person for an offence
• The alleged failure to mention a fact at trial must have occurred before a Defendant is charged;
• The alleged failure must have occurred during questioning under caution by a constable.
• The questioning must have been directed to trying to discover whether or by whom the alleged offence was committed;
• The alleged failure of the accused must have been to mention any fact relied on in his defence in those proceedings;
• The alleged failure must have been to mention a fact which, in the circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned.

Pre-interview Disclosure during a police interview under caution

Prior to an interview under caution a police investigator will usually provide pre-interview disclosure to the suspect or their legal representative. In some cases, disclosure can be full and allow a solicitor to fully advise a suspect in relation to the strengths of the evidence against them. The suspects legal representative will then go on to discuss their options for interview, namely, answering questions in full, providing a new comment or silent interview or drafting a prepared statement.

No adverse inferences can be drawn if the facts were not known to a defendant at the time when ‘he failed to disclose them’ during interview or indeed at charge.

An investigator is under no obligation to reveal the extent of the prosecution case to the suspect or their solicitor prior to the interview. However, if the police disclose limited information about the case against the suspect, so that the solicitor cannot properly advise their client, this may be a good reason for the solicitor to advise the suspect to remain silent or provide a ‘no comment’ interview.  This means that the interviewing officer must disclose sufficient information to allow the suspect and their legal representative to understand the nature and circumstances of their arrest. However, there is no requirement for the police to provide the full prosecution case to them before commencement of the interview or to provide their solicitor with a full briefing prior to the interview commencing.

Should an investigator feel it is necessary to withhold specific information from the solicitor prior to interview, they will need to be able to properly explain the rationale for this should the matter proceed to court.

Can an adverse inference be drawn when my solicitor advises me to go ‘no comment’?

Frequently a suspect’s legal representative will advise them not to answer questions during an interview under caution or provide ‘no comment’ responses during interview.  Very often this will be the correct advice and the best approach taking into account the specific facts of that suspect’s case, the strength of the evidence against them and the pre interview disclosure provided.

However, purely because a solicitor has advised not to answer questions, will not necessarily avoid an adverse inference being drawn.

Case law states that a jury should consider whether it was reasonable for a defendant to rely upon such advice.

There is a two stage test for juries to consider before drawing an adverse inference:

1. Did the defendant genuinely rely on the legal advice i.e. did they accept the advice and believe they were entitled to follow it; and
2. Was it reasonable for the defendant to rely on the advice?

A defendant may be acting unreasonably if he relied on that legal advice to remain silent purely because he had no explanation to provide and the advice suited his own purposes.

Prepared statements

To avoid the drawing of an adverse inference, some defendants will use a prepared statement and then refuse to answer any further questions.  This is usually drafted by their solicitor and will address pertinent points of their defence.  This is usually read out by the solicitor at the commencement of the interview and then a suspect either answers ‘no comment’ thereafter or remains silent. Prepared statements can differ in length – some may be relatively brief whilst some may be far more extensive.

An adverse inference cannot be drawn against a defendant who merely refuses to answer police questions after a pre-prepared statement is read out. Nor can an adverse inference be drawn if the Defendant gives evidence at trial that is completely consistent with his pre-prepared statement. However, an adverse inference can be drawn if the defendant gives evidence that is inconsistent with the statement or   mentions a fact which at the time of the interview, it would have been reasonable to include in the prepared statement.

In R v Knight [2003] EWCA 1977, Laws LJ stated:

“We wish to make it crystal clear that of itself the making of a pre-prepared statement gives no automatic immunity against adverse inferences under Section 34.”

Should I be worried about an adverse inference?

It is important to ensure that you always have a legal representative with during any interview under caution. They will be able to advise you of the best course of action in your specific case. Sometimes that may involve answering questions and sometimes they may recommend a ‘no comment’ interview. They will be able to advise on the potential advantages and disadvantages of different options and advise on the strength of the evidence against you.

How can Olliers help?

Olliers have a highly skilled pro-active criminal defence team who will provide you with expert legal advice throughout all stages of the criminal justice process and ensure your rights are protected.

If you would like to discuss how we can proactively assist you in relation to your case please contact our new enquiry team by email to info@olliers.com, by telephone on 020 3883 6790 (London) or 0161 834 1515 (Manchester) or by completing the form below and our new enquiry team will contact you.