Hackett v R.

A direction under section 34 of the Criminal Justice and Public Order Act 1994 must concern a fact later relied upon by the defence. It is inappropriate in relation to a fact accepted as true and relied upon by the prosecution.

Where an accused gives the same explanation for an earlier omission and an alleged lie, the judge should ordinarily give one tailored section 34 direction. The jury must be told that it cannot draw an adverse inference unless it rejects that explanation. Giving both a section 34 direction and a general Lucas lies direction is likely to confuse the jury unless both are genuinely needed.

The appellant was convicted at Nottingham Crown Court of attempted arson with intent to endanger life. The prosecution alleged that, after his co-accused had threatened to petrol-bomb the victim’s home, the appellant drove with him to obtain petrol and later accompanied him when the petrol bomb was thrown.

In his first police interview the appellant denied knowing of the journey to the petrol station. He later asserted that petrol had been bought for a strimmer and that he had concealed the journey because he feared an allegation of drink-driving. The trial judge gave both a section 34 direction and a Lucas lies direction.

The appeal challenged those directions, aspects of the summing-up, and the continuation of the joint trial after the co-accused declined to give evidence.

1. Appeal dismissed. Although the summing-up contained errors concerning the directions on silence and lies, they did not render the conviction unsafe.

2. A direction under section 34 of the Criminal Justice and Public Order Act 1994 was inappropriate insofar as it concerned the appellant’s failure to mention the undisputed journey to the petrol station and the filling of the petrol can. Those facts were accepted as true and formed part of the prosecution case. The relevant unmentioned defence fact was his asserted purpose in making the journey: obtaining fuel for a strimmer.

3. The jury should have been directed that it could treat the delayed strimmer explanation as a recent invention only if it rejected the appellant’s explanation for the delay, namely his fear of admitting drink-driving. This was the particular innocent explanation requiring consideration. A generic Lucas direction about possible innocent reasons for lies was unnecessary on these facts.

4. The court applied the guidance in R v Mubbashar Rana [2007] EWCA Crim 2261. A judge should generally select the more appropriate of a section 34 direction and a lies direction, adapting it where necessary, rather than giving both from caution. The directions must also be consistent, as explained in R v Stanislas [2004] EWCA Crim 2266.

5. The appellant’s asserted failure to hear a conversation because he had gone inside was not a section 34 issue. The question was whether that account might be true, not what inference could be drawn from his failure to mention the conversation in interview.

6. The evidence of the threats, the journey with a jerry-can, and the prompt petrol-bomb attack made the available inference compelling. The judge’s errors therefore cast no doubt on the safety of the verdict. It was also proper to continue the joint trial after directing the jury to disregard the co-accused’s police interview as against the appellant.

• Court of Appeal (Criminal Division) — dismissed the appeal in [2011] EWCA Crim 380.
• Crown Court at Nottingham — convicted the appellant on 13 March 2009 of attempted arson with intent to endanger life.