Robinson, R v

An adverse inference under Criminal Justice and Public Order Act 1994, section 34, depends on whether the actual defendant could reasonably have been expected to mention the later-relied-on facts when questioned. The jury must assess all circumstances, including legal advice and the reason for it. The correctness of the advice is not decisive. A plausible explanation that silence genuinely resulted from legal advice prevents an adverse inference, but bare evidence that advice was given may be insufficient.

A section 34 direction must be read as a whole. Imperfect language will not make a conviction unsafe where the jury were correctly left to decide whether any inference was fair and proper.

Carl Anthony Robinson appealed, with leave, against his conviction for the murder of Desmond Gordon at the Crown Court at Inner London. He had also been convicted of wounding Kevin Maguire and assaulting Lisa Halls occasioning actual bodily harm.

The appellant contended that his trial representatives had failed to pursue a defence that another participant may have inflicted the fatal wound; that the judge should have directed the jury on causation; and that the direction on his near-silence in police interview was defective. The appeal court received further evidence from the appellant and his former legal representatives before deciding whether the conviction was safe.

Appeal dismissed. The court rejected each ground and held that the murder conviction was safe.

1. The appellant had never instructed his representatives that Peter Murray might have inflicted the fatal wound. His lawyers had explored every realistic defence on the instructions given. By the later stages of the trial causation was not a genuine issue, and the appellant himself had directed counsel to abandon it. The solicitor’s prior professional relationship with Murray had not compromised the preparation or presentation of the defence.

2. A summing-up should not dwell on an issue which is no longer live. The trial judge’s directions required the jury to be sure that the appellant had fatally stabbed the deceased, acted unlawfully, and had the necessary intent. No additional direction on causation was required.

3. Under section 34 of the Criminal Justice and Public Order Act 1994, the decisive inquiry was whether this defendant, in the circumstances actually existing when questioned, could reasonably have been expected to mention the facts later relied on. The jury had to consider all relevant circumstances, including any legal advice and its explanation. The correctness of the solicitor’s advice was not the issue. The absence of evidence explaining why the advice had been given was capable of making reliance on it an inadequate explanation for silence.

4. The direction was not exemplary, but it was not a misdirection when read as a whole. It repeatedly left the jury to decide whether it was fair and proper to draw an inference and warned that silence alone could not prove guilt. Its references to a requirement or obligation to speak did not exceed proper judicial comment in context. Applying Betts and Hall [2001] 2 Cr. App. R. 257 and Francom and others [2001] 1 Cr. App. R. 237, the direction neither impaired trial fairness nor rendered the conviction unsafe.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction: [2003] EWCA Crim 2219.
• Crown Court at Inner London On 28 February 2001, convicted the appellant of murder, wounding and assault occasioning actual bodily harm.