Johnson & Anor, R. v

Section 34(1)(a) of the Criminal Justice and Public Order Act 1994 applies only where an accused has been questioned under caution. A positive refusal to leave a cell for a proposed interview occurs before questioning and does not trigger the statutory adverse-inference regime.

Section 34(5)(b) preserves the former common-law protection in this setting. The prosecution and judge may not invite an adverse inference from that exercise of silence. Where identification is a substantial part of the Crown case, the jury must receive the full substance of a Turnbull direction. Deficiencies which may not independently make a conviction unsafe can do so cumulatively.

At Teesside Crown Court, Johnson and Hind were convicted of burglary and taking a motor vehicle without consent. Each had pleaded guilty to theft of property from the vehicle. The Crown case included fibre evidence placing each appellant in the stolen car, a police officer's recognition of Johnson, and stolen property found at Johnson's home.

Hind had refused to leave his cell for a police interview but later gave an account at trial. The trial judge allowed the Crown to suggest, and the jury to consider, that the refusal supported an inference of guilt. The appellants also challenged the identification directions. A juror had been approached by an intimidator, but the police established that the approach concerned another jury.

The central issues were whether Hind's pre-interview refusal could found an adverse inference and whether the identified defects in the directions rendered the convictions unsafe.

1. The appeals were allowed. The convictions for burglary and taking a motor vehicle without consent were unsafe and were quashed. A retrial was ordered on a fresh indictment.

2. Section 34(1)(a) of the Criminal Justice and Public Order Act 1994 did not apply. Its language requires a failure to mention a fact on being questioned under caution. Hind's positive refusal to leave his cell was a precursor to questioning; no question had been put. The court applied the preconditions stated in R v Argent [1997] 2 Cr App R 27.

3. Section 34(5)(b) preserved the relevant common law. Applying the position stated in R v Gilbert (1978) 66 Cr App R 237, and approved in R v Raviraj (1987) 85 Cr App R 93, the court held that no adverse comment or inference was permissible from Hind's exercise of his right not to answer police questions or disclose his trial account. The judge should have directed the jury to ignore the refusal, or at least not hold it against Hind. The Crown should not have cross-examined on it as evidence of a fabricated account.

4. The trial judge should also have left open the possibility that any attempt by Hind to escape was consistent with guilt only of the admitted theft, rather than burglary or taking the vehicle. The identification direction did not give the jury the full substance of a Turnbull direction. It omitted the special need for caution, the possibility that a convincing witness may be mistaken, and the potential difficulties of identification through a photograph.

5. The handling of the juror-intimidation incident adequately protected the appellants. The judge's instruction that it must not be held against them was sufficient. The complaints concerning alleged bad-character evidence also failed. However, the unlawful adverse-inference direction and the identification-direction deficiencies had a cumulative effect. The court could not regard either conviction as safe.

• Court of Appeal (Criminal Division) — allowed the appeals, quashed the contested convictions and ordered a retrial: [2005] EWCA Crim 971.
• Teesside Crown Court — convicted both appellants of burglary and taking a motor vehicle without consent on 24 September 2004; each had pleaded guilty to theft from the vehicle.