Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

For the purposes of section 34 of the Criminal Justice and Public Order Act 1994, a defendant relies on a fact when counsel, acting on instructions, puts a specific and positive case to a prosecution witness. The witness need not accept the suggestion. The provision also extends to evidence from a co-defendant which defence counsel adopts in closing submissions.

The provision does not apply merely because counsel probes or tests the prosecution case or advances an expressly hypothetical alternative. A judge contemplating an adverse-inference direction should identify the particular facts relied upon at trial but omitted during questioning. The jury must still decide whether the defendant could reasonably have been expected to mention them and whether an adverse inference is proper.

The appellant was convicted of conspiracy to murder and possessing a firearm with intent to endanger life. He did not give evidence. His counsel nevertheless put detailed positive accounts to prosecution witnesses and adopted evidence given by a co-defendant. Several matters forming those accounts had not been mentioned during police interviews and, in one instance, contradicted the appellant's denial that he had been present.

The trial judge directed the jury about adverse inferences under section 34 of the Criminal Justice and Public Order Act 1994. The Court of Appeal dismissed the appellant's appeal in [2002] EWCA Crim 2782.

The certified question was whether a suggestion put to a witness by or on behalf of a defendant could amount to a fact relied upon in his defence when the witness did not adopt it.

1. Appeal dismissed unanimously. In the considered opinion of the Appellate Committee, a positive suggestion put to a witness by or on behalf of a defendant may amount to a fact relied upon in his defence under section 34 of the Criminal Justice and Public Order Act 1994, even when the witness rejects it.

2. The word “fact” has a broad, practical meaning. It covers a pure fact, exculpatory explanation or account advanced as part of the defence case. Section 34 is potentially engaged if the matter, assuming it were true, was something which the defendant could reasonably have been expected to mention when questioned.

3. A defendant may rely on a matter without giving evidence or calling a witness. Counsel acting on the defendant's instructions does so by putting a specific and positive case to prosecution witnesses. Such suggestions place the defence version before the jury, even though counsel's questions are not evidence and the witnesses deny them. This construction also gives practical effect to section 34(2)(c), which permits an inference when the court determines whether there is a case to answer, before defence evidence has been called.

4. Questions which merely probe, test or put the prosecution case to proof are different. Counsel without instructions to advance a positive case must remain within that function. Counsel may advance an expressly hypothetical alternative but may not devise facts. If the distinction is unclear, the judge should ask counsel, outside the jury's presence, to clarify the basis of the questions.

5. Where counsel adopts in closing submissions evidence given by a co-defendant, the defendant relies on that matter for section 34 purposes. The provision is therefore potentially applicable to such an adopted account.

6. The statutory safeguards remain essential. The judge should identify the specific matters relied upon at trial but omitted during questioning. An inference remains discretionary and must be fair in all the circumstances. Ordinarily no adverse inference is available from failure to mention a matter admitted to be true. Nor should an inference be drawn if the jury accepts, or regards as possibly true, an exculpatory explanation for the omission.

7. The trial judge had not identified every omitted matter as clearly as required and had been misled into one erroneous direction by an incomplete interview summary. The Court of Appeal was nevertheless entitled to find that the jury had been sufficiently informed. Neither defect rendered the convictions unsafe.

1. House of Lords: Dismissed the appeal unanimously and affirmed the conclusion that section 34 could apply to a positive suggestion rejected by a witness: [2004] UKHL 1.
2. Court of Appeal (Criminal Division): Dismissed the appeal and answered the material issue affirmatively: [2002] EWCA Crim 2782.
3. Crown Court: The appellant was convicted of conspiracy to murder and possession of a firearm with intent to endanger life. He was acquitted on a further count.