Hoare & Anor, R v

For an adverse inference under section 34(1) of the Criminal Justice and Public Order Act 1994, the prosecution need not prove every interview question verbatim where the evidence sufficiently shows that the defendant was questioned about the offences and failed to give the account later advanced at trial.

Advice to remain silent is an important circumstance, but does not itself prevent an inference. The jury must decide whether, in all the circumstances, the defendant could reasonably have been expected to mention the facts. Genuine reliance on legal advice gives no protection where the true reason for silence was the absence of a satisfactory innocent explanation.

Hoare was convicted of producing amphetamine and, with Pierce, of conspiring to supply it. Both were sentenced at the Crown Court at Lewes. Their defence at trial was that they did not know that amphetamine was being manufactured or supplied.

They appealed against conviction on the basis that the judge should not have permitted adverse inferences from their no-comment police interviews under section 34(1) of the Criminal Justice and Public Order Act 1994. They also challenged the direction concerning their solicitors’ advice to remain silent. Hoare further alleged unfairness arising from post-trial information about the unusual drug-production process.

1. Appeals dismissed. The judge was entitled to leave the jury to consider adverse inferences from both appellants’ interview silence.

2. The evidential foundation for a section 34(1) direction was sufficient. The prosecution had put before the jury evidence that the officers questioned the appellants about the delivery, chemical purchases, observations and the barn laboratory. In the circumstances, the appellants plainly knew that the officers were investigating their involvement in the alleged offences. The prosecution did not have to prove every unanswered question verbatim. The summary evidence accorded with the guidance in R v Condron & Condron [1997] 1 Cr App R 185.

3. The direction on legal advice was correct. Solicitors’ advice to remain silent is relevant, but does not automatically preclude an adverse inference. The statutory question is whether, in all the circumstances, the defendant could reasonably have been expected to mention the facts later relied upon. The jury may conclude that a defendant remained silent because he had no satisfactory explanation consistent with innocence, rather than because of the advice. That approach reconciled R v Betts & Hall [2001] Archbold News 3 with R v Howell [2003] Crim L R 405 and R v Knight The Times, August 20, 2003.

4. The judge could refer to his ruling that Pierce’s detention had been lawful, while making clear that Pierce’s solicitor genuinely held the contrary belief. The nature and basis of the advice could assist the jury in deciding why silence was maintained. The legal quality of the advice was not itself determinative.

5. The later information that the production method had been seen in only one other case did not render the trial unfair. It added nothing material to the accepted possibility that others had helped establish the laboratory and process. It did not meet the disclosure standard in section 3 of the Criminal Procedure and Investigations Act 1996.

• Court of Appeal (Criminal Division): dismissed both appeals against conviction and refused the renewed applications for leave to appeal against sentence.
• Crown Court at Lewes: on 19 March 2003, Hoare was convicted of producing amphetamine and conspiring to supply it; Pierce was convicted of the conspiracy. Hoare received concurrent sentences of 12 and 10 years’ imprisonment, and Pierce received 10 years’ imprisonment.