Najib v R.

Directions about silence, co-accused evidence and bad character must be tailored to the issues and evidence at trial. A jury should not treat earlier misconduct as proving the offence charged merely because it may show motive, credibility or propensity. In a cut-throat case, a warning that each defendant may have an interest to serve can be appropriate, but its omission will not make a conviction unsafe where the competing interests are obvious and the accounts can be tested against substantial independent evidence.

An appellate court assesses alleged omissions in the summing up in their full context. The decisive question is whether they created a real risk that the jury convicted on an impermissible basis or otherwise rendered the verdict unsafe.

Amaar Najib was convicted at Reading Crown Court of murder and arson with intent to endanger life after a petrol attack on a house caused the death of one occupant. His co-accused, Kanwarpal Singh and Navera Ahmed, were acquitted.

Najib and Singh advanced incompatible accounts. Each alleged that the other had set the fire. Evidence concerning earlier damage to a relative's car and Facebook messages was admitted as bad-character evidence in the dispute between the two men.

Najib appealed against conviction. He contended that the judge should have directed the jury to draw no adverse inference from his initial silence in interview, should have warned them about the interest of each male defendant in blaming the other, and should have given fuller directions on the use of bad-character evidence.

1. Appeal dismissed. The alleged omissions did not render the convictions unsafe.

2. The lack of a further no-adverse-inference direction caused no unfairness. The jury had been told that the appellant was entitled to remain silent. Unlike the co-accused, he later answered questions and disclosed the defence advanced at trial. There was no realistic risk that the jury treated his initial silence less favourably than the continuing silence of the others. The court considered McGarry [1991] 1 Cr. App R 377 (CA) in that context.

3. A warning about the interest of one accused in blaming another would have been prudent, consistently with Jones and Jenkins [2004] 1 Cr. App R 60. Its omission was nevertheless harmless. The cut-throat nature of the defences was obvious, the judge separately explained each account, and the jury had ample independent evidence against which to assess them. A warning may also unfairly diminish both defendants' evidence, as noted in Petkar [2004] 1 Cr App R 270.

4. The judge should address the permissible purpose and limits of bad-character evidence where propensity is in issue. But there is no fixed formula for such directions: their content depends on the evidence and issues. The present case differed from Lafayette [2008] EWCA Civ 3238, where the prosecution relied on earlier conduct to establish the probability that the accused committed the charged act. Here the judge deliberately treated the background material as bearing on motive and the credibility of the rival accounts.

5. Read as a whole, the directions required separate consideration of the background matters and warned the jury not to infer that proof of earlier wrongdoing established that Najib lit the house fire. A full propensity direction could have confused the criminal burden of proof between the prosecution and the mutually accusing defendants. The other evidence against Najib was particularly strong, including the vehicle and petrol-station evidence, eyewitness evidence, his burns, the fire-damaged jacket and the expert evidence.

• Court of Appeal (Criminal Division): dismissed Najib's appeal against conviction: [2013] EWCA Crim 86.
• Reading Crown Court: Najib was convicted of murder and arson with intent to endanger life, and sentenced to life imprisonment for murder with a minimum term of 20 years less 234 days, with a concurrent 15-year sentence for arson.