C, R v

An adverse inference under section 34 must be based on a defendant’s failure to mention an identified fact later relied upon. The jury must be directed on whether the defendant could reasonably have been expected to mention that fact and on the particular inference which may fairly be drawn. A specimen direction cannot be read formulaically. It must be tailored to the evidence, the defendant’s account and the circumstances of the police interview.

Where legal advice caused the silence, the jury must receive directions which enable them fairly to assess that explanation. A trial judge must also summarise the material evidence even-handedly and must not undermine a defence by expressing personal views or advancing an unbalanced prosecution theory.

The appellant, aged 17 and unable to read or write, was convicted at the Crown Court at Luton of one count of indecent assault. In police interviews he gave a prepared statement denying physical contact, but on legal advice answered subsequent questions with “no comment”. At trial he added details of a conversation with the complainant.

The judge directed the jury under section 34 of the Criminal Justice and Public Order Act 1994 and commented on disputed evidence and the complainant’s testimony in his summing-up. The appeal challenged both the adverse-inference direction and the fairness of the summing-up.

1. Appeal allowed; conviction quashed. The section 34 direction was fatally flawed. An adverse inference may arise from failure to mention a fact later relied upon, rather than from a general failure to answer police questions. The judge did not identify the relevant fact or facts. On the evidence, the only possible candidate was the appellant’s later account that the complainant had asked him to go out with her and that he had refused.

2. The standard specimen direction was unsuitable if read without adaptation. The appellant had already denied the assault in his prepared statement. His omission was therefore a detail of his account, not an absence of an answer. The jury could not properly infer that he had no answer, that his account had been tailored to the prosecution case, or that he had withheld the detail because it would not withstand cross-examination. At most, a properly directed jury might have considered whether the omitted detail had been invented later. There had been no cross-examination to explore why it had not been mentioned in interview.

3. The court doubted whether any adverse-inference direction was appropriate, given the appellant’s age, illiteracy, lack of criminal sophistication, prepared statement and undisputed reliance on legal advice. In any event, if a direction were given, the jury required careful guidance on whether he could reasonably have been expected to answer the identified question. The direction instead treated legal advice as a possible convenient shield, although the appellant did have an answer to the question about the conversation.

4. The summing-up contained further unfair features. The judge did not summarise the material evidence of either side, advanced conclusions unfavourable to the defence, and made personal comments about defence witnesses and the complainant’s performance. Saying that a matter was for the jury did not make such comments proper. Taken together, these errors made the conviction unsafe.

5. The Crown did not seek a retrial.

• Court of Appeal (Criminal Division)—by [2004] EWCA Crim 3215, allowed the appeal against conviction and quashed the conviction.
• Crown Court at Luton—on 23 July 2004, before His Honour Judge Breen and a jury, convicted the appellant of one count of indecent assault.