Maguire, R. v

A direction under section 34 of the Criminal Justice and Public Order Act 1994 should assist a common-sense assessment of whether an omission in interview indicates that later evidence is untruthful. The expression fact has a broad construction and should not be over-analysed. Where a defendant gives one account in interview and materially changes it at trial, the jury may assess whether the change bears on credibility even without a formal section 34 direction. Formalised directions should not be sought or given unless essential. A conviction remains safe where the jury could properly assess the changed accounts irrespective of any unnecessary formal direction.

The appellant was convicted by a jury of two counts of unlawful wounding following separate confrontations involving Moss and Porter. His defence at trial was self-defence.

In police interview, the appellant described distinct incidents. At trial, he gave an account in which the use of both weapons formed part of a single response to a joint attack. He also relied on being naked when confronting the group outside his home.

The judge gave a direction under section 34 of the Criminal Justice and Public Order Act 1994 concerning those matters. The appeal challenged the safety of the convictions on the ground that no such direction should have been given.

1. Appeal dismissed. The convictions for unlawful wounding were safe. The jury had the issues raised by the defence of self-defence properly before it.

2. Section 34 of the Criminal Justice and Public Order Act 1994 formalises a common-sense inquiry. The question is whether the defendant's failure in interview to mention material later relied on is capable of indicating that the later evidence is untruthful. Following Webber [2004] 1 Cr.App.R 40, fact should be construed broadly for that purpose and should not be subjected to over-analysis.

3. The matters identified by the judge were capable of amounting to facts for section 34 purposes. More importantly, the direction caused no unfairness even if it were unnecessary. The Crown could properly rely on the material changes between the interview account and the trial evidence. Without a formal direction, the jury would still have been entitled to decide whether those changes had an innocent explanation or showed that the appellant was not telling the truth.

4. The court endorsed the warning in Brizzalari [2004] EWCA Crim 310, at [57]. Prosecutors, advocates and judges should avoid unnecessary formalism in seeking or giving section 34 directions, unless such a direction is essential.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction and held the convictions safe: [2008] EWCA Crim 1028.
• Trial court (not stated) — the jury convicted the appellant of unlawful wounding on counts 1 and 3, and acquitted him of possession of an offensive weapon on count 2.