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Guilt from Circumstance: A Matter of Inference

Victor Smith looks at when inference can result in conviction. A shorter version was previously published in the New Law Journal at (2019) 169 NLJ 7865, p12.

Inference is the cornerstone of circumstantial evidence which is defined in Jowitt's Dictionary of English Law, 4th edition, as 'an indirect form of proof, permitting inferences from the circumstances surrounding disputed questions of fact'.  'Inferential reasoning', says Jowitt, 'is the intellectual process by which conclusions are derived from existing information or evidence'.  

The circumstances in which an inference of guilt can be drawn were considered by Lord Normand in R v Teper [1952] AC 480, where he said:

'Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another.  Joseph commanded the steward of his house, "put my cup, the silver cup, in the sack's mouth of the youngest," and when the cup was found there Benjamin's brethren too hastily assumed that he must have stolen it.  It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.'

In R (Patterson) v RSPCA [2013] EWHC 4531 (Admin), the defendant ('D') had been made the subject of an animal disqualification order under s.34 Animal Welfare Act 2006.  The order disqualified D from owning or keeping animals, or participating therein, and 'from being party to an arrangement under which he is entitled to control or influence the way in which animals are kept.'  D lived with his wife who owned 55 animals which lived in or outside their house.  He was convicted of breaching his disqualification order.  On D's appeal, Blake J said: "[B]efore a case can proceed to a finding of guilt by way of inferences to the criminal standard, the inference must not only be one that can be drawn from the evidence but the only sensible inference, the evidence is inconsistent with any other inference save guilt.'  Whereas the justices were entitled to conclude that D was in a position to influence the way in which the animals were kept, they had not considered whether D was 'entitled' as opposed to 'able' to control the animals and had not stated why the facts excluded any other inference but that D had done disqualified things.

Sole inference

In R v Greig [2010] EWCA Crim 1183, a case involving inferred fact that a false representation had been made for the purposes of s.2 Fraud Act 2006, Pitchford LJ distinguished between inferences capable of establishing that there was a case to answer and those upon which a court could convict.  In relation to a case to answer it was not necessary for the prosecution to exclude all other possible inferences than those sought by the prosecution.  As the court put it in R v Jabber [2006] EWCA Crim 2694: 'The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference.'  When it came to conviction, however, the jury had to be 'sure of the relevant inference'.  In R v Rehman [2011] EWCA Crim 3097, D was convicted of unlawful possession of drugs, guns and ammunition found by the police hidden within an unoccupied house which he owned.  D relied on a rent book to show that he was not the only one with access to the house.  There was no forensic evidence linking D to any of the illegal items, but the trial judge ruled that there was a case to answer, as from the absence of evidence of habitation the jury could reasonably conclude that the tenancy was a sham and infer that D was in control of the premises and hence that he had knowledge of the items on the premises.  D did not give evidence, but appealed against conviction.  Spencer J said: 'This was a classic circumstantial evidence case.  … Provided that the inference contended for by the Crown was a proper inference that the jury could make, it did not at the half?time stage have to be the only inference to the exclusion of all others. ... If [D] had an honest answer to the allegations, he could have given evidence and told the jury what it was.'

Inferred knowledge

Whereas inference is most often used to establish physical fact, it can also be used to prove what was known by the defendant at the time of his offending.  The House of Lords considered the latter circumstance in Westminster City Council v Croyalgrange Ltd [1986] 1 WLR 674.  In that case, a company owned premises which were used as a sex establishment without the licence of the local authority.  Both the company and a director thereof were prosecuted for knowingly permitting such use by the sub-tenant of the premises, contrary to the Local Government (Miscellaneous Provisions) Act 1982.  There was a statutory exception to the requirement for premises to be licensed if a person using the premises as a sex establishment had applied for a licence before the local authority's resolution making the provisions applicable to their area had come into force and such application had not yet been determined.  The defendants contended that they did not have the requisite knowledge to constitute an offence because the director, and hence also the company, honestly believed that the sub-tenant had made a valid, and as yet undetermined application for a licence.  The magistrate found that there was a case to answer, but subsequently dismissed the informations when he concluded that the prosecution was unable to prove the defendants knew that no application for a licence had been made by the sub-tenant.  The local authority's appeal was dismissed by the Divisional Court and the House of Lords subsequently held that knowledge was an ingredient of the offence.  They went on to find that it was sufficient to establish a prima facie case on the basis of inferred knowledge.  It was then open, in the second stage of the proceedings for the court, having heard evidence from the defence, to find that the prosecution had not proved the requisite knowledge beyond a reasonable doubt.  In his speech, however, Lord Brightman said that if: '(1) all the other ingredients of the offence are proved, (2) the defendant … chooses not to give evidence of his absence of knowledge and (3) there are no circumstances which sufficiently suggest absence of knowledge, the court may properly infer without direct evidence that the defendant did indeed possess the requisite knowledge.'  Unfortunately, a (probably unintended) corollary of those words is that if the defendant does give evidence as to his lack of knowledge then an inference of knowledge cannot be made.  If that were right, it would mean the defendant could rebut a prima facie inference of knowledge, simply by asserting his lack of knowledge on oath, however strongly the circumstantial evidence indicated that he did have the requisite knowledge.  Fortunately, the instant case, and specifically Lord Brightman's speech, was applied in Latif v Middlesbrough Council [1997] COD 486, where Newman J explained that it was only if 'after the defendant has given evidence, the court is satisfied he had no knowledge' that the prima facie evidence of knowledge would be rebutted.

An inference of knowledge proving guilt beyond reasonable doubt may arise when it is the only logical explanation, as was the case in R v Ali and Hussain [2008] EWCA Crim 146.  There, the Ds were convicted of money laundering on the basis that they were unable to account for large sums of money passing through the accounts of a travel business.  On appeal, the court accepted that the trial judge had been wrong to determine an issue on hearsay evidence when material relating to its admissibility had not been disclosed to the defence.  Nonetheless, the conviction was safe.  There was evidence that the travel business had taken delivery of vast quantities of cash in Scottish and Northern Irish notes for which the Ds had no explanation.  Moses LJ said: 'In those circumstances the jury was entitled to infer knowledge that it came from criminal activity.  Indeed it is difficult to see what other explanation there could have been for the receipt of such massive individual cash deposits without any attempt to verify the legitimacy of their source.' 

Inferred knowledge must be based on clear primary fact.  In R v Abbas [2012] EWCA Crim 2517, D was convicted of possessing an imitation firearm during a robbery.  There was evidence that D had played a significant preparatory role and that he was in the vicinity of the robbery.  On appeal, however, it was held that even if it was established that D had provided a car knowing it was for use in the robbery and knew that a weapon of some kind might be carried, that was insufficient to draw an inference that he knew there would be a weapon.  It was incumbent on the judge to identify the evidence of primary fact upon which the requisite knowledge could be inferred.

Attributed knowledge

An inference of what someone knew can be inferred from what such individual ought to have known.  In R v Armstrong [2018] EWCA Crim 2363, unreported, inference was used to prove the defendant's knowledge for the purposes of a s 1 fraud alleging a breach of s.3 Fraud Act 2006, namely the dishonest failure to disclose information which he was under a legal duty to disclose.  Proof of such an offence involves establishing that the defendant knew of the alleged legal duty.  D, a trader involved in roofing repairs, was convicted of fraud on the basis that he had, inter alia, breached his obligation under consumer contracts regulations by failing to inform an elderly consumer of his right to cancel his contract.  D argued, on appeal, that P was required to prove that he had specific knowledge of his obligations under the Regulations.  Sharp LJ, giving the judgment of the Court of Appeal, said it was not necessary for the prosecution to prove D's 'knowledge of the precise statutory framework and the Regulations that gave rise to [the legal] duty'.  She said: '[T]he fact that a trader ought to know of Regulations can be evidence from which it can be inferred, depending on the circumstances, that he did have such knowledge.'  The circumstances in the instant case were that D had been a trader for some time and the Regulations had been in force for a considerable time.  The trial judge had been right to infer that, because it was a requirement of anyone starting a business to know of the Regulations, a trader such as D would be aware of them.

It cannot be inferred that a person will necessarily have the same knowledge as that of their business.  In R v Kuddus [2019] EWCA Crim 837, D, the sole director of a limited company which operated the takeaway business where D worked as a chef, was found guilty of manslaughter after V died of a nut allergy having eaten a kebab ordered from D's restaurant.  In placing her online order, V had indicated that she had an allergy to 'nuts'.  The manager of the restaurant had seen V's 'nuts' comment but there was no evidence that D, who spoke and read little English, was aware of it.  Upon D's appeal, it was held that although, as sole director, D had a duty to ensure appropriate systems were in place to avoid 'the risk that a customer with a declared allergy was not served food which contained the allergen' (and D had pleaded guilty to breaching EU food safety regulations) a conviction for gross negligence manslaughter required that a reasonable person would have 'foreseen an obvious and serious risk of death'.  That would have required D to have known of V's allergy and it was wrong for the jury to have been directed on the basis that the knowledge of the business or its manager could be attributed to D.

Inferred identity

R v Armstrong, ante, was also a case on inference as to the identity of the accused as the perpetrator of the alleged offence.  D submitted that the trial judge should have found there to be no case to answer as neither of the two complainants in the overall prosecution had specifically identified D.  It was held that the fact that D was not identified in an identity parade did not mean that he was not the trader in question.  D's identity could be inferred from other evidence which included that D's mobile telephone contained the complainant's postcode and had been used to speak to him to arrange for the collection of a tool left at that address, following which D had attended at his address.  D had also told the complainant that he advertised in a particular newspaper and there was evidence that it was D who placed the advertisement.  Conversely an advertisement exalting the services of a partnership and identifying the partners could, as was held in Wall v Rose and Sargent (1998) 162 JP 38, establish a prima facie case that the partners had placed the advertisement.

Inference from silence

The inference that D was the culprit in R v Armstrong, ante, was also supported by the statutory inference, provided by s.34 Criminal Justice and Public Order Act 1994 resulting from the defendant's failure to answer questions in interview.

It was held in R v Daniel (1998) 162 JP 578 that an inference from the defendant's silence at a 'no comment' interview could be drawn even if the silence resulted from legal advice.  In R v Knight [2003] EWCA Crim 1977, it was held that an inference could not be drawn from the defendant's silence when his full defence was disclosed in a prepared statement produced at the interview.  It did not follow, however, that the prosecution was obliged to adduce such a statement in evidence if it was wholly self-serving.

Inferred intent

Inference can go beyond proving what the defendant knows to the way in which he thinks.  In Alliance and Leicester Building Society v Babbs (1993) 157 JP 706, the company was convicted of sending, with a view to financial gain, a document to a minor, namely a 9-year-old, inviting him to borrow money, contrary to s.50(1)(a) Consumer Credit Act 1974.  The document in question was a brochure sent indiscriminately to the company's account holders.  The document included the words: 'Loans are not available to applicants under 18 years of age'.  Upon the company's appeal, the Divisional Court held that whilst the disclaimer was 'regrettably small' it was 'reasonably legible' and indicated that the document was not in fact an invitation to a minor to borrow money.  Furthermore, it was necessary to look at 'the proper inferences that are to be drawn as to the company's state of mind'.  It was held that the 'only logical inference to be drawn from the whole of the evidence', including the disclaimer, was that it was not the company's intent to obtain financial gain from a minor.

Inference as to actions and state of mind

The same circumstances may prove both actus reus and mens rea or, as in Alliance and Leicester Building Society v Babbs, ante, the lack of them.  In R v Fuschillo [1940] 2 All ER, D, the manager of a very small shop told a food controller that he only had a stock of 5 cwt of sugar whereas he was found to have 26 cwt; so much that he could not fit it all into his shop, with some in the side passage which could be reached from the street.  When cautioned, he said: 'I don't know why I took it in.  I'm a fool.'  He was convicted of receiving sugar knowing it to have been stolen, but appealed contending that there was inadequate evidence as to when he had received the sugar or that he knew that it was stolen.  There was no direct evidence as to who owned the sugar or that it had been stolen.  The appeal was dismissed on the basis that there was sufficient circumstantial evidence to provide a case to answer and D had not given evidence in rebuttal.  This decision followed R v Sbarra (1918) 87 LJKB 1003, where it was laid down that 'The circumstances in which a defendant receives goods may of themselves prove that the goods were stolen, and, further, may prove that he knew it at the time when he received them.  It is not a rule of law that there must be other evidence of the theft.'

Inferring deception

The effect of the defendant's actions on others may be inferred.  In R v Rahman [2014] EWCA Crim 2188, D argued on appeal that the trial judge was wrong to have rejected his submission of no case to answer which he had based on the failure of an adjudicator to give evidence that he had been deceived by D into granting his application to remain in the UK.  The Court of Appeal held that it would have been open to the jury 'to infer that the adjudicator had been deceived' since, had he given evidence, he would inevitably have said that he would have rejected D's application had he known his documentation was forged.

Inference from lack of evidence

Paradoxically, guilt may be inferred from an absence of evidence or, more accurately, from evidence of a lack of expected evidence.  In R v Williams [2011] EWCA Crim 474, D was convicted of conspiracy to sell counterfeit golf clubs.  D's case was that although she was involved in the business, she did not know that the clubs were counterfeit.  Her home had not been searched until nine months after that of the main conspirator.  No documents or computer data was found to link her to the conspiracy.  Upon her appeal, D contended that the prosecution should not have been permitted to argue that a lack of business data held by her, in contrast with that held by her co-conspirators, was incriminating when there was no evidence that she had destroyed it.  It was held that 'this was a point based on inference which could properly be left for the jury to consider as part of the overall case'.