Bresa, R. v

Where a defendant relies on legal advice to explain a no-comment interview, a direction under Criminal Justice and Public Order Act 1994, section 34 must fairly balance the right to silence and legal professional privilege with the statutory adverse-inference regime. The jury must identify the particular facts later relied on, and must not speculate about further unmentioned facts.

An adverse inference is not justified merely because the defendant has not disclosed the reasons for the advice. The jury must be sure that the silence was not truly caused by the advice, but by the absence of an innocent explanation or of one capable of withstanding scrutiny. The inference cannot by itself establish guilt.

The defendant was convicted at Lewes Crown Court of wounding with intent to do grievous bodily harm. He received 42 months’ detention in a young offender institution and a recommendation for deportation.

At interview he gave no-comment answers on his solicitor’s advice. At trial he advanced self-defence. The trial judge directed the jury under section 34 of the Criminal Justice and Public Order Act 1994 that they could draw an adverse inference from the matters not mentioned in interview.

By leave of the single judge, the defendant appealed against conviction. The central issue was whether the section 34 direction fairly and accurately addressed his reliance on legal advice and the alleged later fabrication of self-defence.

1. Appeal allowed. The conviction was unsafe. It was quashed and a retrial was ordered.

2. A direction under section 34 of the Criminal Justice and Public Order Act 1994 must be tailored to the case, though the Judicial Studies Board specimen direction is the safer starting point. Its essential features include a fair balance between the defendant’s rights and the statutory choice to remain silent, accurate identification of the facts said to have been omitted, a warning that there must be a case to answer and that guilt cannot rest on the inference alone, and the correct inquiry into the true reason for silence.

3. Where legal advice is relied on, the defendant may preserve privilege and need not disclose the content or basis of the advice. The absence of that disclosure does not automatically make it reasonable to expect an answer at interview. If the jury consider that the defendant had, or may have had, an innocent answer but genuinely and reasonably relied on advice to remain silent, they should draw no adverse conclusion.

4. Conversely, an adverse inference may be drawn if the jury are sure that the defendant remained silent not because of the legal advice but because he had no satisfactory innocent account, such as a later-fabricated claim of self-defence. The trial judge failed to give that essential direction. His language also failed to hold the balance fairly in relation to privilege and invited the jury to speculate about further unmentioned facts.

5. Although the prosecution case was powerful, the section 34 direction was a significant part of the summing up. The court could not be sure what part it played in the jury’s decision. The appeal concerning the deportation recommendation did not arise after the order for retrial; the court did not approve that recommendation by its silence.

• Court of Appeal (Criminal Division): Allowed the conviction appeal, quashed the conviction and ordered a retrial: [2005] EWCA Crim 1414.

• Lewes Crown Court: The defendant was convicted of wounding with intent to do grievous bodily harm on 14 July 2004. On 10 September 2004, he was sentenced to 42 months’ detention in a young offender institution and recommended for deportation.