Howell, R v

Under section 34 of the Criminal Justice and Public Order Act 1994, the question is whether, in all the circumstances, the accused could reasonably have been expected to mention the facts later relied on. Advice to remain silent is a relevant circumstance, but genuine reliance upon it does not automatically prevent an adverse inference.

There must be soundly based objective reasons for silence which outweigh the public interest in a suspect giving an account when questioned. The fairness of a direction on adverse inferences, including under Article 6, depends on all the circumstances and on the direction as a whole.

The appellant was convicted at Swansea Crown Court of wounding with intent and sentenced to six years’ imprisonment. His case at trial was self-defence, but he had given a no-comment police interview after consulting a solicitor.

Following an earlier refusal of leave to appeal, the Criminal Cases Review Commission referred the conviction under the Criminal Appeal Act 1995. The central complaints concerned the failure to call the solicitor or adduce the appellant’s earlier account, and the trial judge’s direction permitting adverse inferences from silence. The appeal also raised several subsidiary complaints concerning disclosure, previous convictions, and trial representation.

1. Appeal dismissed. Laws LJ, giving the court’s judgment, held that the conviction was safe.

2. Section 34 of the Criminal Justice and Public Order Act 1994 requires the jury to decide whether the accused could reasonably have been expected to mention the facts later relied upon, in all the circumstances. A solicitor’s advice is a relevant circumstance, but neither the advice nor professional guidance can remove the issue Parliament has left to the jury.

3. The court declined to follow the approach in Betts & Hall [2001] 2 CAR 257 insofar as genuine reliance on legal advice alone precludes an adverse inference. The reason for silence must be objectively sound and sufficiently cogent to outweigh the public interest in an early account. Ill-health, mental disability, confusion, intoxication, shock, or a genuine inability to recollect without documents or assistance may potentially justify silence. The absence of a written complaint, the possibility that a complainant may withdraw, or an expectation of being charged were not such reasons here.

4. This approach was consistent with Condron v United Kingdom and Beckles v UK. Article 6 fairness depends on all the circumstances, including the situations in which inferences are permitted, their weight, and the terms of the jury direction. The jury were entitled to draw an inference on the facts of this case.

5. The appellant’s earlier statement to his solicitor was a previous consistent statement and was not admissible unless it rebutted an allegation of recent fabrication, which the Crown had not made. Calling the solicitor might also have exposed the basis of the advice and the appellant’s instructions to damaging examination. The trial judge should not have suggested that the defence had been recently fabricated, but that error did not make the conviction unsafe.

• Court of Appeal (Criminal Division) — dismissed the appeal following a Criminal Cases Review Commission reference: [2003] EWCA Crim 1.

• Court of Appeal (Criminal Division) — the full court refused the appellant’s renewed application for leave to appeal against conviction on 14 May 1999.

• Swansea Crown Court — convicted the appellant of wounding with intent on 28 July 1998 and imposed six years’ imprisonment.