Adverse Inference in UK Law

The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion.

We think that the legal position can be summarised as follows: (1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the "classic" or "traditional" test set out by Lord Lane CJ in Galbraith. (2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence.

Having regard to the views of this Court in Cowan, we consider that it is desirable that a direction on the lines indicated above should be given. There is as much a need to remind the jury of the circumstances in which a proper inference may be drawn under section 34 as under section 35. There is no basis for distinguishing between the sections in that respect.

First, Wisniewski is not authority for the proposition that there is an obligation to draw an adverse inference where the four principles are engaged. An appellate court will be hesitant to interfere with the exercise of such a discretion given that it is being exercised in the knowledge of all the nuances of evidence that are in the knowledge of the judge who receives that evidence.

The conclusion we have reached is that, in those cases where the judge has ruled that there is no evidence on which a jury could properly conclude that the defendant had failed to mention any fact relied on in his defence, and that therefore no question arises of leaving the possibility of drawing inferences to the jury, he should specifically direct them that they should not draw any adverse inference from the defendant's silence.

We do not understand the court in Betts & Hall to have held that proven reliance on a solicitor's advice to stay silent without more immunises the suspect from later adverse inference, whatever the quality of the advice. If, however, the text of Betts & Hall might be thought to express such a view, we would disavow it.

It is not the purpose of section 34 to exclude a jury from drawing an adverse inference against a defendant because he genuinely or reasonably believes that, regardless of his guilt or innocence, he is entitled to take advantage of that advice to impede the prosecution case against him. In such a case the advice is not truly the reason for not mentioning the facts.