1. Section 34 of the Criminal Justice and Public Order Act 1994 provides that a court, in determining whether the defendant is guilty of the offence charged 1 may draw such inferences as appear proper from evidence of silence in certain circumstances. Those circumstances are that, on being questioned under caution (by the police or by a person charged with the duty of investigating offences or charging offenders 2), or on being charged or officially informed that they might be charged, the defendant failed to mention any fact relied on in the defence which in the circumstances existing at the time they could reasonably have been expected to mention.
2. The effect of section 34 is that, at a trial, the court can draw such inferences as appear proper (including inferences adverse to the defendant) where a defendant, at an interview under caution, fails to mention a fact relied on in their defence which, in the circumstances, they could reasonably have been expected to mention.
3. Section 34 only applies where an interview under caution takes place, so an inference cannot be drawn where a defendant declines an invitation to attend an interview under caution.
4. The Court of Appeal has laid down six formal conditions which must be met before such inferences can be drawn 3:
5. The phrase "in the circumstances" must not be construed restrictively and relevant circumstances to be taken into account might include the time of day of the interview, the defendant's age, experience, mental capacity, tiredness, personality and the quality and extent of the legal advice which had been given.
6. The phrase "fact" should be read in the sense of its dictionary definition "something that...is actually the case...hence, a particular truth known by actual observation or authentic testimony, as opposed to what is merely inferred, or to a conjecture or fiction". This definition covers any reasons or explanations that a defendant gives for their involvement in the particular matters which, if true, would absolve them from the suspicion that might otherwise arise. 4
7. A defendant may not have the proceedings against him transferred to the Crown Court for trial or have a case to answer or be convicted solely on the basis of an inference drawn under this provision, 5 so that section 34 does not in any way avoid the need to collect sufficient evidence. The court's powers to exclude evidence as a matter of law or discretion remain unchanged. 6 Similarly, nothing in section 34 prejudices the operation of any statutory provision 7 which renders any answer or evidence inadmissible.
8. Section 34 makes it even more important for you to record accurately what was said, and therefore what was not said, at an interview under caution, and when you inform suspects that they might be prosecuted. The order in which you collect evidence is also important, because the more information that the suspect has at interview, the more likely a court is to hold it unreasonable in the circumstances to withhold information.