Turner v R

Under Criminal Justice and Public Order Act 1994, section 34, an adverse inference may arise only from an accused’s failure to mention an identified fact later relied on in the defence, where the accused could reasonably have been expected to mention it. It cannot be drawn merely because the accused gave no comment answers.

Where an accused provides a pre-prepared statement, the jury must compare that statement with the trial account. An inference is available only if a material fact was omitted. A pre-prepared statement and legal advice to remain silent do not automatically prevent an inference, but reasonableness and fairness remain essential.

Turner v R concerned an appeal against a jury conviction at the Crown Court at Inner London for wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. The appellant was alleged to have joined two others in an attack on the complainant.

At police interview, the appellant gave a pre-prepared statement denying involvement and then answered virtually all further questions with no comment. At trial, he said that he had restrained the complainant in a headlock while trying to break up a fight. The trial judge directed the jury on possible adverse inferences from the interview silence and on blood staining on the appellant’s clothing.

The central issue was whether the section 34 direction wrongly permitted an adverse inference from the general refusal to answer questions rather than from identified facts omitted from the pre-prepared statement.

1. Appeal allowed and conviction quashed. The section 34 direction created a real risk that the jury drew an adverse inference merely because the appellant had failed to answer questions in interview. The court could not conclude that the conviction was safe.

2. Section 34 of the Criminal Justice and Public Order Act 1994 concerns a failure to mention a fact subsequently relied on in the defence. A judge must identify the particular fact or facts said to have been omitted, and direct the jury on whether the accused could reasonably have been expected to mention them. A general failure to answer questions cannot itself found the inference.

3. A pre-prepared statement is not an automatic answer to a possible section 34 inference. It may be incomplete or inconsistent with the later account. Equally, the statement is the proper point of comparison with the trial evidence; it is wrong to treat its maker’s refusal to answer further questions as the decisive matter.

4. The judge should have compared the appellant’s prepared statement with his trial evidence and identified any unmentioned fact capable of supporting an inference. No such matter was identified in the summing-up. Any alleged discrepancy should ordinarily be put to the defendant in cross-examination. Depending on the circumstances, a difference between a prepared statement and trial evidence may instead be relevant as a previous lie.

5. Following legal advice to remain silent does not automatically prevent an adverse inference. However, the jury must consider whether silence was reasonable in all the circumstances. The court found no separate error in the judge’s treatment of that advice.

6. The court had concerns about the blood-staining evidence because the expert’s account appeared difficult to reconcile with the prosecution case. It was unnecessary to decide that ground, since the defective section 34 direction required the conviction to be quashed.

• Court of Appeal (Criminal Division): In Turner v R [2003] EWCA Crim 3108, the court allowed the appeal and quashed the conviction.
• Crown Court at Inner London: The appellant was convicted by Judge Campbell and a jury on 27 February 2003 of wounding with intent. He was sentenced to 32 months’ imprisonment; sentence was not appealed.