Riley v Director of Public Prosecutions

An adverse inference from a defendant’s failure to answer questions in police interview requires the defendant to have relied at trial on a fact which was not mentioned. Putting the prosecution to proof does not amount to reliance on a positive fact. Where magistrates reject a submission of no case by relying materially on an erroneous inference, and the effect of that error cannot safely be separated from their assessment of the evidence, the conviction should be quashed. The case may be remitted for a retrial before a different bench.

Liam Riley appealed by way of case stated against his conviction by Barnsley Magistrates for an offence under sections 4(1) and 4(4) of the Public Order Act 1986. The magistrates had rejected a submission of no case to answer and later convicted him, relying in part on an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994 because he had remained silent during interview.

The prosecution conceded that the inference was erroneous because Mr Riley had not relied at trial on a fact which he had failed to mention in interview. The central issues were whether the error could be treated as immaterial and whether the conviction should simply be quashed or the case remitted for retrial.

1. The appeal succeeded. The conviction was quashed and the case was remitted to be tried by a different bench of Barnsley Magistrates’ Court.
2. Section 34 of the Criminal Justice and Public Order Act 1994 did not permit an adverse inference in the circumstances. The appellant had not relied at trial on an assertion that he was not the man shown in the CCTV footage. He had merely put the prosecution to proof. The magistrates therefore erred in treating that matter as a fact relied upon but omitted during questioning.
3. The magistrates’ error was material. Although the prosecution identified circumstantial evidence capable of supporting the conclusion that the appellant was the man shown wearing the pink shirt, it was unsafe to separate the effect of the improper inference from the magistrates’ overall decision-making. A case stated was not drafted with the precision of a statute, and the court could not safely assume that the inference had been only marginal or merely a makeweight.
4. It was just to remit the case rather than quash the conviction without more. The substantial issues should be tried by a court applying the law correctly, including any issue concerning adverse inferences.
5. The question whether the appellant should have given evidence under section 35(2) of the Criminal Justice and Public Order Act 1994 was unnecessary to the disposal of the appeal. The judge indicated obiter that, if required to decide it, he would have rejected the appellant’s argument.
6. The respondent was ordered to pay the appellant’s reasonable costs, with the bill to be submitted within seven days and detailed assessment if not agreed.

• High Court (Administrative Court): Allowed the appeal by case stated, quashed the conviction and remitted the case to a different bench of Barnsley Magistrates’ Court.
• Barnsley Magistrates’ Court: Convicted the appellant and imposed a community punishment order, a two-year bind-over and costs.