Boyle & Anor, R. v

A defective direction under section 34 of the Criminal Justice and Public Order Act 1994 does not automatically make a conviction unsafe. The appellate court must assess the direction actually given, compare it with a proper direction, and decide whether the jury would have been bound to convict. An adverse inference from silence requires identification of the relevant facts and satisfaction that the only sensible explanation for silence was the absence of an answer, or of one capable of withstanding scrutiny. Legal advice is important but does not automatically make silence reasonable. An inference may only provide additional support for an otherwise sufficiently strong prosecution case.

The appellants were convicted of murder by a jury at Teesside Crown Court in 1999 and sentenced to life imprisonment. The Criminal Cases Review Commission referred the convictions under section 9(1) of the Criminal Appeal Act 1995 on the ground that the trial judge had significantly misdirected the jury about adverse inferences from silence under section 34 of the Criminal Justice and Public Order Act 1994.

The Crown accepted that the direction was deficient by current standards but submitted that the convictions remained safe. The appellants also pursued a disclosure complaint concerning evidence given by Ivin about the deceased entering the Saab. The central issue was whether the admitted defects, separately or together, rendered the convictions unsafe.

1. Appeals dismissed. The court rejected an absolutist approach under which every material defect in a section 34 direction makes a conviction unsafe. The question in every case is whether the misdirection caused an injustice and whether the court is sure that the verdict was safe. The proper method is to examine how the case was left to the jury, compare that with a proper direction, and ask whether the jury would have been bound to convict if properly directed.
2. The trial direction was significantly defective. It did not tell the jury that an adverse inference could be drawn only if silence was attributable to the absence of an answer, or of one capable of standing up to scrutiny. It also failed to identify the precise facts to which an inference could relate. A proper direction would have identified the badger-hunt account and the explanation for the deceased's blood in the Saab. It would also have made clear that an inference could not prove guilt by itself or be the main basis for conviction.
3. The court accepted that legal advice was an important circumstance and that the actual direction tended to steer the jury away from drawing an inference. However, there was no legitimate basis, even allowing for that advice, for withholding an account of the appellants' movements or an explanation for the blood. The court was sure that the jury would inevitably have found that those later accounts were invented and would not withstand scrutiny. A fuller direction would have made an adverse inference more, not less, likely.
4. The disclosure ground did not affect safety. The information about Ivin's car was not known to the officers responsible for the case. In any event, Ivin's evidence was exceedingly weak and the jury were most unlikely to have relied on it when rejecting the explanation for the blood in the Saab.

The convictions were safe and the appeals were dismissed.

• Court of Appeal (Criminal Division) — Dismissed the appeals against conviction: [2006] EWCA Crim 2101.
• Criminal Cases Review Commission — On 10 August 2004 referred the convictions under section 9(1) of the Criminal Appeal Act 1995 because of the section 34 direction.
• Criminal Cases Review Commission — Previously declined to refer the convictions on 2 January 2002.
• Court of Appeal — Refused the original application for leave to appeal against conviction on 8 February 2000.
• Crown Court at Teesside — On 28 May 1999, Jackson J and a jury convicted both appellants of murder and imposed life sentences.