O, R v

Evidence of a statement made in a defendant’s presence can be admitted as a tacit admission only if a properly directed jury could find that the defendant adopted it by words, conduct, action or demeanour. Mere silence cannot by itself prove adoption. The court must also consider the evidence’s relevance and whether admission would adversely affect the fairness of the proceedings.

Where the actual issue is intent, evidence suggesting an additional racial motive may have little relevance. Its admission will nevertheless not make a conviction unsafe where it caused no unfairness and the other evidence provides a clear basis for the verdict.

The appellant was convicted of murder at the Crown Court sitting at Snaresbrook on 13 April 2005. After an altercation with the deceased, he armed himself with a piece of wood, pursued the deceased and struck him once on the head from behind. He formally admitted striking the blow and causing the death.

Two days later, a companion made a racial comment when challenged about the attack. The appellant said nothing and walked away smirking. The trial judge admitted this evidence as a possible tacit admission. Although the defence statement suggested self-defence, counsel maintained that the real issue was whether the appellant intended really serious injury. The appeal challenged the admission, relevance and fairness of the evidence.

1. Appeal dismissed. The conviction for murder was safe.

2. The prosecution relied on the common-law rule preserved by section 118(1)(5) of the Criminal Justice Act 2003. Under the rule stated in R v Christie [1914] AC 545, a statement made in an accused’s presence is evidence only to the extent that the accused accepts it as their own. Acceptance may be inferred from words, conduct, action or demeanour, but the question is for the jury.

3. Where such evidence is challenged, the court must ask whether a properly directed jury could find adoption, whether the material is sufficiently relevant, and whether admission would adversely affect the fairness of the proceedings. The equal-terms qualification discussed in R v Collins and Keep [2004] 2 Cr App R 199 did not assist the appellant. He was not in the disadvantaged position of an accused questioned by police officers and enjoying a right to silence.

4. It was open to the jury to find that the appellant’s silence, smirking and departure amounted to adoption of his companion’s statement. The evidence was relevant on the trial judge’s understanding that self-defence remained in issue. Once it became clear that intent was the real issue, racial motivation added little to the evidential question.

5. There was no unfairness or material prejudice. The evidence of the appellant’s deliberate, forceful blow from behind provided a sufficient basis for the jury’s finding that he intended really serious injury. The challenged evidence did not undermine the safety of the verdict.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2005] EWCA Crim 3082.
• Crown Court sitting at Snaresbrook — convicted the appellant of murder on 13 April 2005.