Regina v. Webber

The House was asked to decide the meaning of the phrase "any fact relied on in his defence" in section 34(1)(a) of the Criminal Justice and Public Order Act 1994. The court held that the word "fact" should be given a broad meaning and that a defendant "relies on" a fact not only when he adduces it in evidence but also when his counsel, acting on instructions, puts a specific and positive case to prosecution witnesses. This can be so even if the prosecution witnesses do not accept the suggestion. The court explained that section 34 may apply at the "case to answer" stage and emphasised the need for careful jury directions identifying the specific matters not mentioned in interview and for respect of safeguards (including legal professional duties and disclosure obligations).

Background and parties: The appellant, Robert Webber, was tried with two co-defendants on counts including conspiracy to murder (Contrary to the Criminal Law Act 1977) and possession of a firearm with intent to endanger life (Firearms Act 1968). He was convicted on conspiracy and on the firearm count and appealed to the Court of Appeal; the matter proceeded to the House of Lords on a certified question about the scope of section 34 of the Criminal Justice and Public Order Act 1994.

Nature of the appeal / relief sought: The appellant challenged the application of section 34(1)(a) at trial and asked whether a suggestion put to a prosecution witness by or on behalf of the accused can amount to a "fact relied on in his defence" for the purposes of section 34 where that suggestion is not accepted by the witness. He also complained of aspects of the trial judge's directions and of an incomplete interview summary placed before the jury.

Facts and procedural posture: The prosecution relied on three incidents to prove conspiracy. In interviews under caution the appellant denied presence or involvement in the incidents. At trial defence counsel put alternative positive accounts to prosecution witnesses (for example that the appellant was not present on one occasion and that, on another, the appellant had been present but the prosecution aggressors had fired first). Some parts of the appellant's oral case were advanced by adopting evidence of a co-defendant. The trial judge directed the jury under section 34 and also under section 35 (failure to give evidence). The Court of Appeal considered and certified the legal question which the House answered.

Issues framed by the court:

• Whether a suggestion put to a prosecution witness by or on behalf of a defendant can amount to a "fact relied on in his defence" under section 34 if the witness does not accept the suggestion.
• Whether adoption of a co-defendant's evidence by counsel can amount to reliance for the purpose of section 34.
• Whether the trial directions and identification of specific facts not mentioned in interview rendered the convictions unsafe.

Reasoning and decision: The House concluded that "fact" in section 34 should be read broadly to include alleged facts or exculpatory explanations advanced at trial, and that a defendant relies on a fact when counsel, acting on instructions, puts a specific and positive case to prosecution witnesses or adopts a co-defendant's account. Two principal reasons were given: (1) specific suggestions plant the defendant's version in the jury's mind, and the jury should be able to consider whether that version, if true, would have been mentioned earlier in interview; (2) subsection (2)(c) allows the section to apply at the "case to answer" stage when the defendant may not yet have given evidence, but the jury will usually know what positive case has been advanced through cross-examination. The court stressed the need for clear identification by the judge of the precise facts not mentioned and for careful directions. The House dismissed the appeal.

Appeal dismissed. The House held that, for the purposes of section 34 of the Criminal Justice and Public Order Act 1994, a defendant may be taken to "rely on" a fact when his counsel, acting on instructions, puts a specific and positive case to prosecution witnesses (or adopts a co-defendant's evidence), even if those witnesses do not accept the suggestion. The word "fact" is to be given a broad meaning; trial judges must identify the specific matters not mentioned in interview and give careful directions to the jury. The appellant's conviction was not rendered unsafe on the grounds raised.

Trial at Crown Court (trial judge Clarke J). Convictions on conspiracy and firearm offences. Appeal to the Court of Appeal (Criminal Division) (reported as [2002] EWCA Crim 2782; judgment under appeal), which certified the question of general public importance. Further appeal to the House of Lords, which delivered judgment [2004] UKHL 1.