English to Croatian Law/Patents Law (general) criminal law

A court can draw an adverse inference from a defendant's silence in circumstances as set out in sections 34 to 37 Criminal Justice and Public Order Act 1994.

Section 34 allows an inference to be drawn when a suspect is silent when questioned under caution prior to charge (section 34(1)(a)).

An inference can also be drawn when a defendant is silent on charge (section 34(1)(b)).

These subsections are distinct and the fact that no inference can be drawn from silence during questioning does not mean that no adverse inference can be drawn from silence on charge.

In Dervish and Anori [2001] EWCA Crim. 2789, the trial judge had ruled that the defendants' no comment interviews were inadmissible, but had directed that the jury may draw an adverse inference from silence at charge in accordance with section 34(1)(b). At the Court of Appeal, the defendants had argued that this approach was wrong as the two limbs of section 34 were inextricably linked. The Court of Appeal rejected this argument and approved the judge's approach.

There are two points that arise - (1) if faced with a situation of silence on charge and interview, you should remind the court of the potential drawing of adverse inference under both subsections, and; (2) if there is any doubt as to the admissibility of the interviews, you should be prepared to invite the court to draw an adverse inference under section 34(1)(b) if applicable.

This guidance will concentrate on section 34, as it is under this provision that adverse inferences are almost always invariably drawn.