Lowe, R v

Under section 34 of the Criminal Justice and Public Order Act 1994, an adverse inference may arise only from a defendant’s failure in interview to mention a fact later relied on. The jury should be directed to the relevant facts and to the defendant’s right to remain silent.

A defect in such a direction does not automatically make a conviction unsafe. The appellate court must assess the directions as a whole, compare the position with that under a proper direction, and decide whether the jury would inevitably have convicted. A conviction remains safe where the jury could not have been misled, the evidence was overwhelming, and silence played only a small and cautious part in the case.

The appellant was convicted at Liverpool Crown Court of conspiracy to supply controlled drugs and was sentenced to 24 years’ imprisonment. His appeal against conviction and sentence was dismissed by the Court of Appeal on 30 October 2003: [2003] EWCA Crim. 3182.

The Criminal Cases Review Commission referred the case under section 9 of the Criminal Appeal Act 1995. It contended that the trial judge’s directions on section 34 of the Criminal Justice and Public Order Act 1994 inadequately identified the facts capable of supporting an adverse inference, appeared to permit an inference from silence itself, and did not expressly remind the jury of the appellant’s right to silence.

The central issue was whether any deficiencies in the summing-up rendered the conviction unsafe.

1. Appeal dismissed. The court held that certain criticisms of the section 34 directions were well founded, but that the conviction remained safe.

2. A jury considering an adverse inference must focus on facts later relied on by a defendant which were not mentioned when questioned. The judge’s general direction correctly stated that principle, and his treatment of the identified incidents sufficiently connected the appellant’s later case with the relevant interview questions. A more detailed listing of each fact was not required.

3. The final review of the interviews was unsatisfactory. It failed expressly to state that the appellant had a right to remain silent and could be read as permitting adverse inferences from silence generally, rather than from particular later-relied-on facts. The judge should also have indicated that the appellant’s claimed involvement in stolen-car dealing might explain a reluctance to incriminate himself.

4. Following the approach in Boyle and Ford [2006] EWCA Crim. 2101, there is no absolutist rule that a later-identified misdirection under section 34 necessarily makes a conviction unsafe. The court must assess the case as left to the jury, consider the position under a proper direction, and determine whether the jury would have been bound to convict.

5. Read as a whole, the summing-up made clear through the caution and the earlier specific directions that the appellant was entitled to silence. The evidence was overwhelming, and interview silence formed only a small and cautiously presented part of the prosecution case. The defects therefore caused no injustice and did not vitiate the conviction.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference under section 9 of the Criminal Appeal Act 1995, dismissed the renewed appeal and held the conviction safe.
• Court of Appeal (Criminal Division): On 30 October 2003, dismissed the appellant’s appeal against conviction and sentence: [2003] EWCA Crim. 3182.
• Liverpool Crown Court: Convicted the appellant on 4 December 2000 of conspiracy to supply controlled drugs and, on 5 February 2001, imposed a sentence of 24 years’ imprisonment.