Adverse inferences from silence and access to legal advice (CJPOA 1994 s.34(2A))

Section 34(1)(a) of the Criminal Justice and Public Order Act 1994 allows the court or jury to draw such inferences as appear proper where the accused, on being questioned under caution before charge, failed to mention a fact later relied on in his defence which he could reasonably have been expected to mention. However, s.34(2A) provides that, where the accused was at an authorised place of detention at the time of the failure, subsections (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor before being questioned. A police station is an authorised place of detention (s.38(2A)). Kwame was interviewed at a police station before he had any opportunity to consult a solicitor, so no s.34 inference may be drawn.

Why A is wrong: Whether the fact could reasonably have been expected to be mentioned is irrelevant once s.34(2A) disapplies subsections (1) and (2).

Why B is wrong: S.34(2A) turns on whether he had been allowed an opportunity to consult a solicitor, not on whether the denial of that opportunity was lawful.

Why C is wrong: S.34(1)(a) expressly covers questioning under caution before charge, as well as failures on charge under s.34(1)(b).

Why D is wrong: No inference is available here, and in any event s.38(3) provides that a person shall not be convicted solely on an inference drawn from such a failure.