Smith, R. v

An adverse-inference direction under section 34 of the Criminal Justice and Public Order Act 1994 is permissible only where the judge identifies facts later relied on which the defendant could reasonably have been expected to mention in interview and from whose omission guilt may properly be inferred. An agreed true fact cannot found an adverse inference. Nor can a bare denial of an essential allegation, since that would in substance permit guilt to be inferred from the exercise of the right to silence. The judge should discuss the proposed direction and its terms with counsel. A serious, unfounded direction will render a conviction unsafe unless the appellate court can be confident that it had no material effect.

The appellant appealed against his conviction at Lewes Crown Court on 15 December 2010 for attempted robbery. The prosecution alleged that, while his co-defendant demanded money and assaulted the complainant, the appellant blocked the complainant's exit and made threats. The appellant accepted that he was present but denied participating.

He gave a no-comment police interview on his solicitor's advice. The prosecution neither cross-examined him about that interview nor alleged that his account was a late invention. Without prior submissions from counsel, the trial judge directed the jury that it might draw an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994. The issue was whether that direction was legally justified and, if not, whether the conviction remained safe.

1. Appeal allowed; conviction quashed. The judge misdirected the jury by inviting it to draw an adverse inference from the appellant's no-comment interview.

2. A section 34 direction is not mandatory merely because a defendant remains silent in interview and later gives evidence. Before giving such a direction, the judge must identify the facts subsequently relied on which were omitted in interview and decide whether their omission could properly support an inference of guilt.

3. The appellant's presence was agreed to be true. Under R v Webber [2004] UKHL 1, failure to mention an agreed true fact cannot, as a general proposition, justify an adverse inference. The appellant's remaining account was a bare denial of participation. Treating that denial as a basis for an inference would, in practical effect, allow the jury to infer guilt from the exercise of his right to silence. That was outside the purpose of section 34. The court endorsed the caution in Brizzalari [2004] EWCA Crim. 310 against invoking the provision unless the individual case requires it.

4. The prosecution's suggested basis for treating the appellant's support for the co-defendant's account as a late invention could not cure the direction. He had not been questioned in interview about that matter, the allegation was not put in cross-examination, and it was not the factual basis identified in the judge's direction. It would have been unfair to leave it to the jury. The judge should have invited submissions and directed the jury not to draw an adverse inference.

5. The conviction was unsafe. The jury's rejection of the co-defendant's account did not itself prove that the appellant aided or abetted the robbery. The evidence against him was not overwhelming, and the court could not know what effect the erroneous direction had had on the jury.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed the conviction: [2011] EWCA Crim 1098.
• Lewes Crown Court — convicted the appellant of attempted robbery on 15 December 2010. No citation was stated.