Inferences from failure to account for a substance: the special warning (CJPOA 1994 s.36)
Elena Petrova is arrested next to a freshly sprayed wall and taken to a police station in England on suspicion of criminal damage. Green paint matching the graffiti is on her hands. After consulting her solicitor, she is interviewed under caution. The officer tells her he believes the paint is there because she sprayed the wall and asks her to account for it, but does not tell her what the effect of a failure to account for it would be. She answers 'no comment'. At trial she gives no evidence and relies on no fact in her defence, and the prosecution invites the court to draw an inference under s.36.
Which of the following best describes whether an inference may be drawn under s.36 of the Criminal Justice and Public Order Act 1994?
Choose one answer to see the reasoning.
Worked answer
Correct answer B: No inference may be drawn, because she was not told in ordinary language what the effect of failing to account for the paint would be.
THE RULE TO REMEMBER
A s.36 inference requires that the suspect was told in ordinary language, when asked to account for the object, substance or mark, what the effect of failing to do so would be.
Inferences from failure to account for a substance: the special warning (CJPOA 1994 s.36)
Section 36 of the Criminal Justice and Public Order Act 1994 allows the court to draw proper inferences where an arrested person fails to account for an object, substance or mark on their person, clothing or in their possession, after an officer has said he believes it may be attributable to their participation in an offence and asked them to account for it. Paint on Elena's hands is a substance, and the belief and request were put to her. However, s.36(4) provides that the section does not apply unless the accused was told in ordinary language, when the request was made, what the effect of the section would be if she failed or refused to comply: the 'special warning' reflected in Code C para 10.11. Elena was never told this, so no s.36 inference is available, whatever else was done properly.
Why A is wrong: The ordinary caution is not enough; s.36(4) requires a specific explanation of the effect of failing to account.
Why C is wrong: Section 36(1) expressly covers any object, substance or mark, which includes paint on her hands.
Why D is wrong: Access to a solicitor (s.36(4A)) is an additional condition, not a substitute for the warning required by s.36(4).
Why E is wrong: No inference is available here, and in any event s.38(3) forbids conviction solely on such an inference.
A little more practice done.
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