Study Notes · 65 sections
Identification evidence is notoriously unreliable. Research consistently shows that eyewitness identification is wrong in a significant number of cases. The Devlin Committee (1976) found that mistaken identification was the single biggest cause of wrongful convictions. As a result, the courts treat identification evidence with special caution, and there are specific rules governing how it is obtained and presented.
This topic covers two main areas: (1) the Turnbull guidance on how courts should handle disputed identification evidence, and (2) the statutory provisions in ss.34-38 CJPOA 1994 allowing the court or jury to draw adverse inferences when a defendant remains silent. Both areas are heavily tested in the SQE and are essential knowledge for any criminal practitioner.
Turnbull is the leading authority on identification evidence. The Court of Appeal laid down guidelines for judges when identification is disputed. The guidelines apply to all cases where the prosecution case depends wholly or substantially on identification evidence. The judge must warn the jury about the special need for caution before convicting on identification evidence alone.
The Turnbull warning is required whenever identification is disputed and the prosecution case depends wholly or substantially on identification evidence. It does not matter whether the identification was from a formal identification procedure (like an ID parade) or from a chance encounter. If the defence challenges the identification, the judge should give the warning unless the identification is so strong that no warning is needed.
The judge must tell the jury that: (1) there is a special need for caution before convicting on identification evidence, (2) the quality of the identification evidence is more important than the quantity, (3) a honest witness can still be mistaken, (4) they should examine closely the circumstances in which the identification was made, and (5) they should consider whether the witness had any reason to lie or was under pressure.
When challenging identification evidence, focus on the quality factors. How long did the witness actually see the person? Was it dark? Was the person moving? Was the witness stressed? Even if the witness is genuinely confident, confidence does not equal accuracy. Research shows that witness confidence is a poor predictor of identification accuracy.
The Turnbull warning is not required where: the identification is not disputed, the identification is based on evidence other than visual recognition (such as voice, gait, or distinctive features), or the evidence of identification is so strong that the judge considers no warning necessary. However, if in doubt, judges should give the warning. It is better to warn unnecessarily than to fail to warn when required.
The judge can direct an acquittal if the identification evidence, having regard to all the circumstances, is so poor that a reasonable jury properly directed could not safely convict on it. This is a high threshold. The judge does not decide whether the identification is reliable - that is for the jury. The judge only intervenes if the evidence is so weak that no reasonable jury could rely on it.
Factors that may lead to a directed acquittal include: a very brief glimpse of the defendant, poor lighting conditions, a significant distance between witness and defendant, the defendant wearing clothing that obscured their face, a long delay between the event and the identification, and any suggestion that the witness has been influenced by external factors such as media coverage or conversations with other witnesses.
A directed acquittal is only appropriate in the most extreme cases. The fact that the identification evidence has weaknesses does not mean the judge should direct an acquittal. The jury may still be able to assess the evidence and reach a safe conclusion, provided they have been properly warned. Judges are generally reluctant to take cases away from the jury unless the evidence is truly hopeless.
The right to silence is a fundamental principle of English criminal law. A defendant does not have to say anything to the police, does not have to give evidence at trial, and cannot be forced to incriminate themselves. This right is protected by Article 6 ECHR. However, the Criminal Justice and Public Order Act 1994 (CJPOA 1994) allows the court to draw adverse inferences from a defendant's silence in certain circumstances.
The CJPOA provisions strike a balance between the right to silence and the interests of justice. The provisions do not abolish the right to silence. A defendant can still remain silent. But if they do, the court or jury may be entitled to draw adverse inferences, meaning they can consider the silence as evidence of guilt. Whether inferences can be drawn depends on the specific provision and the circumstances of the case.
An adverse inference is not automatic just because the defendant was silent. The court must be satisfied that the conditions for drawing inferences are met. The jury must be properly directed on when they can and cannot draw inferences. Failure to give the proper direction can result in an unsafe conviction and a successful appeal.
Where, in any proceedings against a person for an offence, evidence is given that the accused was, before being charged, questioned by a constable trying to discover whether or by whom the offence had been committed, the court may draw such inferences from the failure to mention any fact relied on in his defence as appear proper.
For s.34 to apply, several conditions must be met: (1) the defendant must have been questioned by a constable, (2) the questioning must have been before charge, (3) the questioning must have been about the offence (or related conduct), (4) the defendant must have failed to mention a fact which they later rely on in their defence, (5) the fact must be one which in the circumstances the defendant could reasonably have been expected to mention.
This is the critical condition. The court considers all the circumstances, including: whether the defendant had legal advice, the timing of the questioning, the nature of the questioning, the defendant's mental and physical condition, and whether the fact relied on was obvious. The test is objective - would a reasonable person in the defendant's position have mentioned this fact? If the defendant was properly cautioned, they would have been told that failure to mention something might harm their defence.
Inferences cannot be drawn under s.34 where: the defendant was not properly cautioned, the defendant asked for legal advice and was denied it, the questioning was oppressive or inappropriate, the fact was something the defendant could not reasonably have been expected to mention at that stage, or the defendant was not fit to be interviewed.
In Beckles, the House of Lords held that s.34 applies even where the defendant was not the prime suspect at the time of questioning. What matters is that the questioning was about the offence, not that the defendant was suspected of committing it. This means a defendant who volunteers for interview as a witness can still face adverse inferences if they fail to mention facts they later rely on in their defence.
The fact relied on in the defence must have been available to the defendant at the time of questioning. If the defendant only discovered the fact later, or if the fact arose from circumstances that did not exist at the time of the interview, s.34 will not apply. Always check the chronology carefully when assessing whether s.34 inferences are available.
At the trial of a person charged with an offence, where the court is satisfied that the physical or mental condition of the accused makes it proper for them not to give evidence, the accused shall not be called to give evidence. Otherwise, the court or jury may draw such inferences as appear proper from the failure of the accused to give evidence.
For s.35 to apply: (1) the defendant must not have given evidence at trial, (2) the court must not have been satisfied that the defendant's physical or mental condition makes it proper for them not to give evidence, (3) the prosecution must have established a prima facie case (a case to answer). If the prosecution has not established a case to answer, the defendant is entitled to sit silent without any adverse inferences being drawn.
This is a crucial safeguard. Under s.35(2)(b), the court or jury may only draw inferences if it appears to the court that the defendant's silence can only be sensibly attributed to the defendant having no answer or none that would stand up to cross-examination. If the prosecution case is weak, the defendant may have legitimate reasons for not testifying, and inferences should not be drawn.
If the defendant does not give evidence, the judge must give the jury a direction explaining: (1) the defendant has an absolute right not to give evidence, (2) the jury must not convict solely on the basis of the defendant's silence, (3) they may draw inferences only if the prosecution case is sufficiently strong, and (4) they may consider the silence along with all the other evidence. Getting this direction wrong is a common ground of appeal.
This is one of the most important decisions you will make for your client. If the client has a good explanation to give, testifying may help their case. If the prosecution case is weak, staying silent may be the better option. Consider the strength of the prosecution case, whether the client would make a good witness, and whether they have a credible account to give. Never pressure a client either way.
Where a person is arrested and charged with an offence, and an object, substance, or mark is found on him, or in or on his clothing or footwear, or in his possession, or in the place where he was arrested, which appears to be attributable to the commission of the offence, the court may draw such inferences as appear proper from his failure to account for it when questioned.
Common examples include: blood on clothing, stolen property in possession, damage to a vehicle matching the scene of a collision, injuries to the defendant's hands (in an assault case), and tools matching those used in a burglary. In each case, the defendant was questioned about the object, substance, or mark, and failed to provide an explanation. The explanation does not need to be true, just something that would account for the item.
For s.36 to apply: (1) the defendant must have been arrested and charged, (2) an object, substance, or mark must have been found, (3) it must appear attributable to the offence, (4) the defendant must have been given a proper opportunity to account for it, (5) the defendant must have failed to do so, or done so in a way that was unsatisfactory. The questioning can be before or after charge.
s.36 applies even if the defendant had no opportunity to mention the explanation at the initial police interview under s.34. This is because s.36 can apply to questioning after charge, and to situations where the specific object or mark was only discovered later. The two provisions serve different purposes and can both apply to the same defendant.
Where a person is arrested by a constable on reasonable suspicion of having committed an offence, and is subsequently charged with that offence, the court may draw such inferences as appear proper from his failure to give any account, or an unsatisfactory account, of his presence at the place where he was arrested when questioned under caution.
s.37 is specifically about explaining why the defendant was present at a particular place. It applies when the defendant was arrested at a place and failed to explain why they were there. The focus is narrower than s.34 (which covers any facts) but broader than s.36 (which covers specific objects or marks). s.37 can apply where the defendant was arrested at the scene of a crime but failed to explain their presence.
For s.37 to apply: (1) the defendant must have been arrested on reasonable suspicion, (2) they must have been arrested at a particular place, (3) they must have been charged with the offence, (4) they must have been questioned about their presence at that place, (5) they must have failed to give any account, or given an unsatisfactory account. The question is specifically about their presence, not about the offence itself.
s.37 commonly arises where the defendant is found at the scene of a burglary, or near a location where drugs are recovered. The question asked is simply: "Why are you here?" If the defendant has an innocent explanation (such as "I live nearby" or "I was walking my dog"), they should give it at the time. Giving the explanation later at trial may be less convincing and may allow inferences to be drawn.
A person shall not be convicted of an offence solely on an inference drawn from silence under ss.34-37. The court must ensure that the jury is not directed that it is the duty of the accused to prove their innocence or that they are required to give evidence. The court must also stop any questioning that is oppressive or unreliable.
Under s.38(3), a defendant cannot be convicted solely on the basis of an inference drawn from their silence. The prosecution must have some other evidence to support the charge. Silence can supplement the prosecution case, but it cannot be the entire case. This is a fundamental safeguard that prevents the prosecution from relying entirely on the fact that the defendant said nothing.
Under s.38(1), the silence provisions do not apply in circumstances where the defendant was not allowed the opportunity to consult a solicitor. If the defendant asked for legal advice and was denied it, or if the police improperly delayed access to a solicitor, the silence provisions may not apply. This is a crucial protection - the right to legal advice is linked to the right to silence.
Under s.38(1), inferences cannot be drawn if the questioning was oppressive or the answers were unreliable. Oppressive questioning includes prolonged interviews without breaks, threats or intimidation, or questioning that exploits the defendant's vulnerability. If the defence can show the interview was oppressive, the silence provisions should not apply.
| Feature | s.34 | s.35 | s.36 | s.37 |
|---|---|---|---|---|
| Situation | Silence at police interview before charge | Failure to testify at trial | Failure to account for objects/marks found on arrest | Failure to account for presence at place of arrest |
| When it applies | During police questioning before charge | At trial when defendant does not give evidence | When object/mark found that links to offence | When arrested at a place and fails to explain presence |
| Key condition | Fact could reasonably have been expected to mention | Defendant fit to give evidence; prosecution case to answer | Object attributable to the offence | Defendant arrested on reasonable suspicion |
| Stage | Pre-charge | Trial | Pre or post-charge | Pre or post-charge |
| Safeguard | Must have been cautioned; had access to solicitor | No conviction on silence alone; no duty to prove innocence | Must have had opportunity to account for the item | Must have been questioned about presence |
A useful way to remember: s.34 is about the INTERVIEW (3+4=7, interview is the 7th letter... or just remember: 34 = pre-charge silence), s.35 is about the TRIAL (35, think "trial at 5" or remember it is the only trial-based provision), s.36 is about THINGS (6 letters in "things" - objects, marks), s.37 is about PLACES (7 letters in "place" - presence at scene).
One of the hardest decisions in criminal practice is advising a client whether to answer police questions. If the client stays silent, adverse inferences may be drawn at trial under s.34. If the client answers, they may incriminate themselves. You need to weigh up the strength of the prosecution case, the nature of any defence, the client's ability to give a coherent account, and the risks of each approach.
Silence may be advisable where: the client has no coherent account to give, the prosecution evidence is very weak and the client should make no comment, the client is confused, vulnerable, or under the influence, the police are asking speculative questions, or there are technical defects in the investigation that the client should not help the police fix. In these cases, the risk of self-incrimination may outweigh the risk of adverse inferences.
Answering questions may be advisable where: the client has a clear and credible explanation, the client has an alibi or other factual defence, the explanation is something the client could not reasonably raise later (such as "I was at home watching television"), or the client needs to explain away incriminating circumstances (such as being found at the scene). In these cases, giving an account early prevents the prosecution from arguing the client is making up a story later.
A useful compromise is the pre-prepared statement. The client writes out their account before the police interview begins. The solicitor then reads the statement and the client answers "no comment" to all further questions. This allows the client to put their account on the record without being drawn into a detailed cross-examination by the police. It also means the prosecution cannot argue the client failed to mention facts they later rely on.
Always record the advice you give to your client about whether to answer questions. If the client chooses to remain silent against your advice, note this on the interview record. If adverse inferences are later drawn at trial, the jury should know that the client acted against legal advice. This can be a powerful counter-argument to the prosecution's suggestion that silence implies guilt.
Ask your client: "Is there anything you want to say now that you could not explain later?" If the answer is yes (for example, "I have an alibi" or "I acted in self-defence"), the client should probably give an account now. If the answer is no, staying silent may be the better option. This simple question helps focus the advice on what really matters.