Inferences from silence—failure to mention facts
Inferences from silence—failure to mention facts

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Inferences from silence—failure to mention facts
  • What is an adverse inference?
  • When can an inference be drawn?
  • There must be proceedings for an offence
  • Failure to mention facts must occur before a defendant is charged
  • The failure must occur during questioning under caution or at charge
  • The questioning must be directed at trying to discover whether or by whom the alleged offence was committed
  • The failure to mention a fact must be a fact relied on by the defence
  • The defendant could reasonably have been expected to mention facts
  • Access to legal advice
  • More...

Inferences from silence—failure to mention facts

The Criminal Justice and Public Order Act 1994 (CJPOA 1994) permits a court to draw adverse inferences where a defendant relies on facts in their defence that they did not mention when being questioned under caution or charge.

For information on interviews conducted in accordance with the Police and Criminal Evidence Act 1984 (PACE 1984), see Practice Note: Interview under caution.

What is an adverse inference?

When summing up a case for a jury, a judge is obliged to identify any specific matters which the prosecution allege the defendant failed to mention, and thereby to alert the jury to any inference or inferences, which they are being invited to draw from that failure.

CJPOA 1994 provides that a court may draw such 'inferences as appear proper' from a failure to mention facts relied on at trial, in determining whether to dismiss a charge, whether there is a case to answer and, most frequently, whether the defendant is guilty.

The significance for the jury of a failure by the defendant when first questioned to mention facts which they later rely on at trial is whether or not that failure is an indication that the facts which are now being advanced can or cannot be relied on.

The recent College Crown Court Compendium explains that the adverse inference which may be drawn is not limited to

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