Allan v The Queen

A direction under section 34 of the Criminal Justice and Public Order Act 1994 must identify the facts allegedly withheld, explain the limited adverse inference available, and direct the jury on the conditions for drawing it. Those conditions include whether the accused could reasonably have been expected to speak, whether silence can only sensibly be attributed to having no sustainable answer, and the effect of legal advice.

Evidence obtained by a state agent who, after the suspect has exercised the right to silence, conducts the functional equivalent of interrogation bypasses essential safeguards and is generally inadmissible. Material non-disclosure concerning an informer's potential reward may render a conviction unsafe where it could reasonably have affected the verdict.

The appellant was convicted at Manchester Crown Court of conspiracy to rob and the murder of a supermarket manager. His renewed application for leave to appeal against conviction was dismissed in January 1999.

Following a reference by the Criminal Cases Review Commission, he appealed on three grounds. First, he alleged that the jury had been misdirected on adverse inferences from his post-April 1995 silence in police interviews. Secondly, he challenged the admission of evidence from a police informant who had been placed with him in custody to obtain admissions. Thirdly, he relied on alleged non-disclosure of early discussions between the informant and police handlers about a £30,000 reward.

The central issues were whether the conviction was safe in light of those matters and whether the earlier appellate refusal should be revisited.

1. Appeal allowed. The convictions were quashed. The court could not say that the conviction was safe because the direction on silence was materially deficient.

2. The section 34 direction failed adequately to identify the particular facts said to have been withheld, including the appellant's alibi. It did not tell the jury that an adverse inference could be drawn only if silence could sensibly be attributed to the absence of an answer, or an answer capable of withstanding scrutiny. Nor did it adequately explain how to assess silence maintained on legal advice. It was insufficient merely to recount defence submissions against drawing an inference. The direction therefore failed to give the protection required by section 34 of the Criminal Justice and Public Order Act 1994.

3. The court adopted the analysis of the European Court of Human Rights in the same litigation. Hirrell was an agent of the state and his persistent, police-directed questioning was the functional equivalent of interrogation after the appellant had exercised his right to silence. This circumvented the safeguards of a formal interview. The evidence was therefore largely, if not wholly, inadmissible under section 78 of the Police and Criminal Evidence Act 1984, although the admissibility of some earlier admissions might have required separate analysis. This conclusion was supported by R v Christou [1992] 95 Cr App R 264.

4. On the assumption that the reward discussions had not been disclosed, that ground would also have succeeded. The discussions and instructions to the informant should have been recorded and disclosed. Since the material could have materially affected the challenge to Hirrell's credibility, the prosecution had to show that its disclosure could not reasonably have affected the verdict.

5. The European Court decision was an exceptional circumstance permitting reconsideration of the earlier appellate refusal. The respondent did not seek a retrial.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court allowed the appeal and quashed both convictions.
• Court of Appeal (Criminal Division): On 18 January 1999, the court dismissed the appellant's renewed application for leave to appeal against conviction.
• Manchester Crown Court: On 17 February 1998, the appellant was convicted of conspiracy to rob and murder and received life imprisonment for murder, with a concurrent 15-year sentence for conspiracy.