Chivers, R. v

A trial judge may leave provocation to the jury where the evidence arguably supports it, even though it conflicts with the defendant’s primary case, but should not give directions which unfairly undermine that case. Previous convictions for dishonesty may assist the assessment of credibility, but the jury must not treat them as proving that the defendant is untruthful.

Under section 34, an adverse inference may arise from a late exculpatory fact which the defendant could reasonably have mentioned in interview. It cannot arise from a fact accepted as true, or from silence in response to unspecified questions. A misdirection on part of a section 34 direction will not make a conviction unsafe where properly directed inferences remained available and the verdict could not realistically have differed.

Chivers appealed against his conviction for murder at Cardiff Crown Court on 10 March 2010. He had stabbed the deceased twice after an altercation outside his home.

His case at trial was self-defence and accident. The judge also left manslaughter by provocation, despite its inconsistency with the appellant’s account. The appeal challenged the directions on provocation, previous convictions for dishonesty, and adverse inferences from interview silence under section 34 of the Criminal Justice and Public Order Act 1994.

The appellant also sought an adjournment to advance a possible diminished-responsibility case based on fresh psychiatric material.

1. Appeal dismissed. The conviction was safe despite a defect in one part of the direction on interview silence.

2. The provocation direction was fair. The judge identified conduct capable of amounting to provocation and directed the jury on actual loss of self-control and the ordinary-person limb. The appellant’s disability was properly included in the factual review. It did not require separate treatment as part of the legal direction because the appellant had not relied on it as affecting his mental state or ability to resist the deceased. The court also observed that provocation was unrealistically available on the evidence: the appellant denied losing control, and the asserted deliberate use of a kitchen knife could not reasonably have been the reaction of a person of ordinary self-control.

3. The direction on dishonesty convictions was unobjectionable. It correctly confined their relevance to credibility, while warning the jury not to treat past dishonesty as establishing present untruthfulness. Its substance was indistinguishable from the approved approach in Edwards and Chohan [2005] EWCA Crim 1813.

4. The judge erred in permitting an adverse inference from silence in the fifth and sixth interviews. The jury did not know the witness statements or specific questions put in the fifth interview, and could not determine whether the appellant had failed to mention a fact later relied on in his defence. Nor could an inference be drawn from his later acceptance of facts that were agreed to be true. Applying Webber [2004] UKHL 1, section 34 concerns a late exculpatory fact or explanation which could reasonably have been advanced earlier.

5. A section 34 direction nevertheless remained proper in relation to material omissions in the first four interviews, including the asserted accidental second stabbing. Given the strong prosecution case, there was no real possibility of a different verdict had the jury been told to disregard the later interviews. The court also refused an adjournment for a new diminished-responsibility case. The proposed evidence was inconsistent with the appellant’s trial instructions, and there was no basis to suggest that any mental disorder had impaired his ability to give those instructions.

• Court of Appeal (Criminal Division) — Appeal against the murder conviction dismissed.
• Cardiff Crown Court — The appellant was convicted of murder on 10 March 2010 before Wyn Williams J.