Benn & Anor v R

An adverse inference under sections 34 or 36 of the Criminal Justice and Public Order Act 1994 cannot itself establish a case to answer. Where silence followed legal advice, the jury must decide whether the advice was the genuine reason for silence, rather than assess the quality of that advice. An inference is permissible only if the real reason for silence was the absence of an innocent or satisfactory explanation.

A direction which does not use the later recommended form may nevertheless be adequate when read as a whole. Fresh expert criticism will not render a conviction unsafe where it adds nothing material to issues already evaluated by the jury and the remaining circumstantial evidence is overwhelming.

The appellants were convicted at Manchester Crown Court of conspiracy to evade the prohibition on importing Class A controlled drugs. The prosecution relied on evidence of cocaine contamination on cash and other items, the appellants’ travel and finances, and their failure to answer questions in interview.

The full court refused renewed applications for leave to appeal against conviction in December 1998. The Criminal Cases Review Commission later referred the convictions, principally on fresh expert evidence criticising contamination evidence and the comparison databases. Mrs Benn’s reference also raised the judge’s directions under sections 34 and 36 of the Criminal Justice and Public Order Act 1994.

The central issues were whether the fresh evidence rendered the convictions unsafe and whether the directions on adverse inferences from silence were legally adequate.

1. The appeals were dismissed. The court admitted the fresh expert evidence under section 23 of the Criminal Appeal Act 1968, but held that it did not undermine the safety of the verdicts.
2. The appellants rightly abandoned a challenge to the analytical methodology. Following R v Compton [2002] EWCA Crim 2835, there was no scientific criticism of the techniques, competence or accuracy of the readings. The contamination risks and the limitations of the safe and suitcase evidence had substantially been available at trial and had been put before the jury. Any further material would not have affected its verdicts.
3. The databases could not provide a statistically valid basis for determining the provenance of the notes. They could nevertheless be used as limited comparators. In the context of the very high contamination levels, the contaminated vacuum-cleaner dust and car, and the other circumstantial evidence, the jury could properly regard the contamination as significant. The judge had overstated evidence attributed to Dr Sleeman and his lottery analogy was wrong, but the prosecution case remained overwhelming and the verdicts were safe.
4. Under sections 34 and 36 of the Criminal Justice and Public Order Act 1994, silence alone cannot found a conviction; there must first be a case to answer, as explained in Condron v Condron [1997] 1 Cr App R 185. Although the direction did not state that requirement with later-recommended clarity, the independent evidence was abundant.
5. Where a defendant remained silent on legal advice, the material question is whether the advice was genuinely the reason for silence, not whether the advice was sound. Applying Condron v UK (2001) 31 ECHRR 1, R v Betts & Hall [2001] 2 Cr App R 257, and R v Hoare & Pierce [2004] EWCA Crim 784, the court held that the direction, read fairly, focused the jury on the real reason for silence and adequately protected the appellants’ rights.
6. The late complaint that no lies direction had been given was too late to form part of the grounds of appeal.

• Court of Appeal (Criminal Division): Following Criminal Cases Review Commission referrals, dismissed the appeals against conviction: [2004] EWCA Crim 2100.
• Court of Appeal (full court): Refused the appellants’ renewed applications for leave to appeal against conviction on 10 December 1998.
• Manchester Crown Court: On 29 October 1997, convicted both appellants of conspiracy to evade the prohibition on importing Class A controlled drugs.