Mohammad, R. v

A defendant who serves a pre-prepared statement and then gives no-comment answers in interview has no automatic immunity from an adverse-inference direction under section 34 of the Criminal Justice and Public Order Act 1994. The propriety of a direction remains fact-sensitive, including whether the trial account adds significant matter or differs from the earlier account.

An appellate court will not treat a conviction as unsafe where such a direction was fairly given and did not play a central part in the trial. This is especially so where the jury’s attention was directed to the substantive factual issue on the evidence.

The appellant was convicted at Isleworth Crown Court of wounding with intent to cause grievous bodily harm and sentenced to five years’ imprisonment. His defence was self-defence following a confrontation at a petrol station.

He had given the police a pre-prepared statement but answered no comment in interview. At trial he gave further detail about the complainant’s words and threats, and identified his companion. The Recorder directed the jury on adverse inferences under section 34 of the Criminal Justice and Public Order Act 1994.

The appeal challenged the safety of the conviction on the basis that no such direction was open where the prepared statement had substantially set out the defence.

1. Appeal dismissed. The court held that the Recorder was entitled in law to give a direction under section 34 of the Criminal Justice and Public Order Act 1994.
2. A pre-prepared statement does not itself prevent an adverse inference. The court treated R v Knight [2004] 1 Cr App R 9 as making clear that there is no automatic immunity. It also followed the warning in R v Turner (Dwaine) [2004] 1 Cr App R 24 that a prepared statement may prove incomplete or inconsistent with a later trial account.
3. The question was finely balanced. The court accepted that the first two matters raised in cross-examination could be viewed as elaboration of the prepared account, and that the later identification of the companion caused no prosecutorial prejudice. Nevertheless, these matters had been explored before the jury and the Recorder was entitled to conclude that a section 34 direction was appropriate.
4. The direction was carefully and fairly given. In any event, it did not play a central part in the trial. The summing-up focused the jury on the evidence bearing on self-defence, and the conviction was therefore not unsafe.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed.
• Crown Court at Isleworth: On 16 September 2008, the appellant was convicted of wounding with intent to cause grievous bodily harm and sentenced to five years’ imprisonment.