Shah & Anor, R. v

Where the prosecution relies on a defendant’s late or apparently false alibi to support guilt, the judge should give a Lucas direction if the jury may reason from the falsehood to guilt. The direction must explain that a false alibi may have been advanced to bolster a genuine defence and is not, without more, proof of guilt. A full alibi direction is generally appropriate, although it is not invariable where that prohibited reasoning presents no risk. A summing-up need not rehearse every detail, but it must fairly reflect material defence challenges to the prosecution evidence. Material omissions and an uncorrected misdirection may cumulatively render convictions unsafe.

The appellants, who were brothers, were convicted at Snaresbrook Crown Court of wounding with intent. Identity was the central issue. Each appellant denied involvement and relied on an alibi supported by witnesses.

The prosecution challenged the late disclosure of the alibi details and the failure to identify the alibi witnesses in interview or defence statements. The trial judge directed the jury that the prosecution had to disprove the alibis, but declined to give the further direction on the possible significance of a false alibi. The appellants also contended that the summing-up omitted important challenges to the complainant’s identification evidence and misstated what he had told his mother.

The central issue was whether those directions and summing-up errors made the convictions unsafe.

1. The appeals were allowed. The court quashed both convictions because it could not be sure that the verdicts were safe. It directed a retrial on fresh indictments.

2. A full alibi direction should generally be given, although it is not invariably required: see R v Harron [1996] 2 Crim App R 457 and R v Nyanteh [2005] EWCA Crim 686. The court applied the approach in R v Middleton (unreported), that a Lucas direction is unnecessary only where there is no risk that the jury will use a lie as proof of guilt.

3. Here, the prosecution had relied heavily on the appellants’ failure to give alibi particulars or name supporting witnesses until a late stage. That challenged their credibility as well as the truth of the alibi. Since they had been interviewed weeks after the alleged offence, the jury could have concluded that their initial inability to remember was genuine but that they later used false evidence to reinforce an otherwise genuine defence. This created the prohibited risk. The judge therefore ought to have directed that a false alibi was not necessarily evidence of guilt.

4. A judge need not summarise every item of evidence favourable to the defence. However, the summing-up did not fairly convey the force of the defence challenges to the complainant’s early failure to name the appellants, his descriptions, the absence of an early account of a knife, and the alleged influence of his mother. The judge also incorrectly stated that the complainant had told his mother that both appellants attacked him, and declined to correct that error.

5. The omissions and misdirection might not independently have made the verdicts unsafe. Taken with the missing Lucas direction, however, they did so cumulatively. The appellants were to be rearraigned within two months, with venue to be directed by the senior presiding judge of the South Eastern Circuit.

• Court of Appeal (Criminal Division) — allowed the appeals, quashed the convictions and ordered retrials: [2008] EWCA Crim 1899.
• Snaresbrook Crown Court — convicted both appellants of wounding with intent on 12 October 2007 and sentenced each to four years’ custody on 10 December 2007.