Essa, R v

For a direction under section 34 of the Criminal Justice and Public Order Act 1994, the decisive question is whether the defendant could reasonably have been expected to mention at interview the fact later relied on at trial. Solicitors’ advice to remain silent is relevant but does not automatically prevent an adverse inference. The jury must not convict wholly or mainly on that inference.

A defendant is required to serve a defence statement under the Criminal Procedure and Investigations Act 1996. The absence of a statement may be significant, but where the defence is merely a denial of presence its significance may be marginal. Section 11(5) is compatible with article 6 because the judge retains control over unfair cross-examination and jury directions.

R v Essa concerned a conviction for robbery on a suburban train. The appellant denied being the robber. He had answered no questions in police interview, on his solicitor’s advice, and had served no defence statement. At trial he said that he was not on the train and did not use the line on Sundays.

He appealed against directions concerning adverse inferences from his interview silence under section 34 of the Criminal Justice and Public Order Act 1994, and the absence of a defence statement under the Criminal Procedure and Investigations Act 1996. He also contended that section 11(5) of the latter Act was incompatible with article 6 of the European Convention on Human Rights.

1. Appeal dismissed. The section 34 direction was proper. The central inquiry was whether the appellant could reasonably have been expected to mention at interview the fact later relied on at trial. The jury had been correctly directed that it could draw an inference only if that question was answered affirmatively, the only sensible explanation for silence was the absence of an answer capable of scrutiny, and the prosecution case was otherwise sufficiently strong to call for an answer. It had also been told that it could not convict wholly or mainly on the inference.

2. The fact that the appellant had acted on legal advice was relevant but did not automatically preclude an inference. No evidence identified the content or basis of the advice, and legal professional privilege remained unwaived: see R v Bowden [1999] 2 Cr App R 176. In the absence of contrary evidence, proper advice could be assumed to have included the effect and risks of section 34. The judge adequately left the issue to the jury.

3. Although section 34 was engaged, a trial judge should consider whether a complex direction will assist where the trial defence is no more than an assertion that the defendant was not present.

4. Section 5(5) required service of a defence statement. There was no evidence that the appellant’s failure to serve one resulted from legal advice, so no direction about such advice was required. The judge correctly left the absence of a statement as a matter which the jury could take into account, while reminding it that the appellant said he had told his solicitor that he was not on the train. In a case involving only a bare denial, the significance of the omission may be marginal and requires careful judicial management.

5. Section 11(5) was compatible with article 6. The right to silence and the privilege against self-incrimination are distinct aspects of a fair trial. Judicial control remains available to stop unfair cross-examination and to ensure an appropriate jury direction. In any event, the identification evidence was overwhelming and the conviction was safe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2009] EWCA Crim 43.
• Trial court: the appellant was convicted of robbery. The court and citation are not stated in the judgment.