Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

Adverse inference in practive

Adverse inference in practive

Postby megaman » Sun Jan 15, 2017 6:10 pm

under Sections 34-37 of the Criminal Justice and Public Order Act an adverse inference "which appears proper" can be drawn from a defendants refusal to testify.

My first question

how often does this happen in practice?
Obviously it is absurd to conclude that the defendant did not testify for "insert X reason here" because the reason for a decision not to testify is subjective. It is known only to the defendant and nothing can change that.
You would think that a jury of 12 people would never have more than 1 person who is stupid enough to think that you can magically know why someone choose not to testify.
Unfortunately most trials are decided by magistrates who can often sit alone so one persons stupidity could influence a decision in most cases.

my second question
Does a person who has a real reason not to want to testify have any good options?

Some people may not wish to testily because they would have to reveal something that could have consequences not related to the charge at hand (ether the content of their testimony would effectively be a statement that says they did something else wrong or it could be something they done want a abusive partner, strict parents, unfriendly employer, tabloids ect to know about.
Some people have difficulty speaking in certain situations, which is not connected with a known psycological condition which they could claim as their reason for not testifying. For some people any attempt to talk in court would go something like this
https://www.youtube.com/watch?v=lj3iNxZ8Dww
This could cause multiple problems, not least of which is involuntarily saying something random which is incriminating but untrue and being unable to explain this.
megaman
 
Posts: 106
Joined: Mon Oct 28, 2013 8:55 pm

Re: Adverse inference in practive

Postby atticus » Sun Jan 15, 2017 7:02 pm

The jurors may by some process - call it magic, or call it paying attention - know what the other evidence is that has been given in the case.

The point is that the adverse inferences may tie in to the Defendant's unwillingness to answer the evidence that exists against him.
User avatar
atticus
 
Posts: 18041
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Adverse inference in practive

Postby megaman » Sun Jan 15, 2017 7:31 pm

But the point is the judge/jury can never ever know why the defendant is not willing to answer questions. Therefore it is absurd to claim that it in itself becomes a piece of evidence against him.
megaman
 
Posts: 106
Joined: Mon Oct 28, 2013 8:55 pm

Re: Adverse inference in practive

Postby atticus » Sun Jan 15, 2017 7:55 pm

Did you actually read the bit about other evidence that the Defendant is unwilling to answer?
User avatar
atticus
 
Posts: 18041
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Adverse inference in practive

Postby megaman » Sun Jan 15, 2017 8:16 pm

yes i did
and the point still stands
the other evidence stands on its own. It does not magically become stronger just because the defendant does not talk because nobody knows why the defendant did not talk.
megaman
 
Posts: 106
Joined: Mon Oct 28, 2013 8:55 pm

Re: Adverse inference in practive

Postby Smouldering Stoat » Sun Jan 15, 2017 8:43 pm

Of course it does, in many cases. Evidence which goes unchallenged is always going to be stronger than that upon which doubt has been cast. If there is a reason why the defendant cannot give evidence, the defence should say so. The court is quite entitled to consider whether the defendant is unwilling to give an explanation because he has nothing to say.
Smouldering Stoat
 
Posts: 5861
Joined: Thu Nov 01, 2012 6:31 pm
Location: Near the Creek.

Re: Adverse inference in practive

Postby atticus » Sun Jan 15, 2017 8:43 pm

meg: D (a) does nothing to make unchallenged evidence weaker, (b) may strengthen it by failing to put forward an explanation.
User avatar
atticus
 
Posts: 18041
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Adverse inference in practive

Postby dls » Sun Jan 15, 2017 10:47 pm

the reason for a decision not to testify is subjective.


Mot necessarily. Whether a particular reason is in somebody's mind is an objective question
David Swarbrick (Admin) dswarb@gmail.com - 0795 457 9992
User avatar
dls
Site Admin
 
Posts: 11485
Joined: Thu Nov 01, 2012 1:35 pm
Location: Brighouse, West Yorkshire

Re: Adverse inference in practive

Postby megaman » Thu Jan 19, 2017 4:19 pm

dls wrote:
the reason for a decision not to testify is subjective.


Mot necessarily. Whether a particular reason is in somebody's mind is an objective question

An objective question which can never be answered with any sort of certainty.
megaman
 
Posts: 106
Joined: Mon Oct 28, 2013 8:55 pm

Re: Adverse inference in practive

Postby dls » Fri Jan 20, 2017 1:19 pm

Better.

The point is that the section imposes exactly the doubtful inference you question. It leaves a dishonest gap when it refers to a 'proper' inference - it just begs the question as to whether any such inference can be proper. I was against it at the time, but 'in practice' it appears to have worked.
David Swarbrick (Admin) dswarb@gmail.com - 0795 457 9992
User avatar
dls
Site Admin
 
Posts: 11485
Joined: Thu Nov 01, 2012 1:35 pm
Location: Brighouse, West Yorkshire


Return to Other Law

Who is online

Users browsing this forum: No registered users and 1 guest