Adetoro, R v

Under section 34 of the Criminal Justice and Public Order Act 1994, an adverse inference from silence at interview is proper only where the jury reject any explanation for that silence and conclude that the defendant had no answer, or no answer capable of withstanding scrutiny. The omission of that direction is a misdirection, but it does not inevitably make a conviction unsafe. Safety depends on the circumstances.

Where the explanation for silence is inseparable from the defence rejected by the jury, and the directions otherwise required the jury to reject an innocent explanation before treating a lie as support for the prosecution, the jury may necessarily have followed the reasoning required by a correct section 34 direction. A direction that silence cannot itself prove guilt and can provide only additional support may adequately convey the necessary limits on adverse inferences.

The appellant was convicted at Manchester Crown Court in 1998 of conspiracy to rob and sentenced to 26 years’ imprisonment. In 1999 the Court of Appeal dismissed his conviction appeal but reduced the sentence to 22 years.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, he brought a further appeal against conviction. He had answered ‘no comment’ throughout police interviews but gave detailed trial evidence denying participation in the robbery conspiracy. The principal issue was whether defects in the trial judge’s section 34 direction rendered the conviction unsafe.

1. The appeal against conviction was dismissed. The trial judge misdirected the jury by omitting to state that an adverse inference could be drawn only if the appellant’s explanation for silence was rejected and the jury concluded that he had no answer, or no answer capable of withstanding scrutiny.

2. Section 34 of the Criminal Justice and Public Order Act 1994 qualifies the right to silence. It permits only such adverse inferences as are proper. Where a defendant explains silence, an inference is improper if the jury accept that explanation; otherwise the jury might treat an accepted explanation as supporting guilt.

3. However, the omission did not automatically make the conviction unsafe. The court applied R v Chenia [2002] EWCA Crim. 2345 and Petkar [2004] 1 Cr.App.R 270: the effect of a defective section 34 direction depends on the circumstances of the individual case.

4. Here, the explanation for silence was inseparable from the defence. The appellant said that he had concealed only involvement in stolen-car dealings, not a robbery conspiracy. The jury’s rejection of that defence necessarily entailed rejection of the explanation. Further, the judge’s Lucas direction required the jury to consider whether any lie had an innocent explanation before using it in support of the prosecution. Thus, if they drew an inference from the silence, they could only have concluded in substance that the appellant had no sustainable answer at interview.

5. The remaining criticisms disclosed no misdirection. The direction that failures to mention matters could not alone prove guilt, but could provide additional support for the prosecution case, sufficiently conveyed the limits on adverse inferences. Repeated reference to the caution also made clear that the appellant had no obligation to answer questions. The evidence was overwhelming independently of any adverse inference.

• Court of Appeal (Criminal Division) — Further appeal against conviction, following a Criminal Cases Review Commission reference, dismissed: [2006] EWCA Crim 1716.

• Court of Appeal (Criminal Division) — In 1999, dismissed the appeal against conviction but reduced the sentence from 26 years to 22 years’ imprisonment.

• Manchester Crown Court — In 1998, convicted the appellant of conspiracy to rob and imposed a sentence of 26 years’ imprisonment.