B & Anor, R v

A defendant does not adopt a police interview merely by accepting that he made the recorded statements. Adoption requires agreement that the interview account is true, so that its contents become part of that defendant’s evidence.

Where an interview is not adopted, its admissibility must be assessed under the statutory hearsay and previous-inconsistent-statement provisions, with the applicable safeguards. A judge’s use of an incorrect basis for admission will not render a conviction unsafe where the evidence was clearly admissible under the proper statutory route and admission would have been appropriate.

A properly framed Lucas direction prevents a jury from treating a lie, by itself, as proof of guilt. Its incidental effect on a co-defendant does not establish unfairness in a joint trial.

At Wood Green Crown Court, B was convicted on 4 May 2007 of attempted robbery arising from an incident on a bus. S and a third defendant were acquitted of attempted robbery but convicted of affray.

B appealed against conviction. The central issue was whether S’s recorded police interview, which appeared to implicate B but which S did not accept as true in evidence, had been admitted and used properly. B also challenged the adequacy of the jury warning about that material and the judge’s Lucas direction concerning S’s inconsistent accounts.

The appeals against sentence by B and S were abandoned.

1. Appeal dismissed. B’s conviction for attempted robbery was safe. The appeals against sentence had been abandoned.
2. The trial judge was wrong to treat S’s acknowledgement that he had made the recorded interview statements as an adoption of their contents. A witness adopts an interview only by accepting the substance of what occurred, thereby making it part of his evidence. Mere acceptance that the recorded words were spoken does not do so.
3. S’s interview was nevertheless capable of admission under the Criminal Justice Act 2003. It was hearsay for the purposes of section 114. Since S said that he could not remember the events addressed in interview, it was also a previous inconsistent statement under section 119. The judge should have considered the statutory safeguards, including sections 114(2) and 126 and section 78 of the Police and Criminal Evidence Act. Applying those safeguards, the court concluded that admission was appropriate. The judge’s erroneous route to admission therefore could not affect the safety of the conviction.
4. The summing-up gave an adequate warning about the danger of using S’s interview against B, particularly because S might have wished to distance himself from the other defendants. The judge was entitled, though not bound, to give a Lucas direction on S’s inconsistent accounts. Properly read, it warned that a finding that S lied did not itself justify a finding of guilt. It neither directed nor invited the jury to treat S’s lie as evidence of B’s guilt. Any incidental effect of an otherwise proper direction was a consequence of the joint trial and caused B no unfairness.

• Court of Appeal (Criminal Division): B’s appeal against conviction was dismissed: [2008] EWCA Crim 365. The sentence appeals by B and S were abandoned.
• Wood Green Crown Court: B was convicted of attempted robbery on 4 May 2007. S and D were acquitted of attempted robbery but convicted of affray.