McKnight, R v

An adverse inference for pre-charge silence under section 34 of the Criminal Justice and Public Order Act 1994 depends on a defendant’s failure to mention a fact later relied on in the defence. A prepared statement that sets out the material facts prevents the jury from being invited to infer that those facts were withheld.

The direction must identify with care any genuinely new fact or material variation in the trial account. Where credibility is central, a lengthy and materially inaccurate adverse-inference direction may undermine a good-character direction, render the trial unfairly prejudicial and make the conviction unsafe.

The appellant was convicted at the Crown Court at Inner London of using a false instrument and sentenced to 12 months’ imprisonment. He had caused solicitors to submit a document purporting to be the will of a woman who had died intestate. The Crown relied on suspicious surrounding circumstances to allege that the document was false and that he knew or believed it to be false.

His principal ground challenged the rejection of a submission of no case to answer. During the appeal, the court also considered the judge’s direction on adverse inferences from the appellant’s silence in police interview, notwithstanding his prepared statement.

1. The appeal was allowed and the conviction quashed. The judge had been entitled to reject the submission of no case to answer. The highly unusual and delayed production of the purported will, its form, the absence of any trace of the attesting witnesses, and the appellant’s account of its receipt and storage provided a circumstantial case which a properly directed jury could assess. A jury could properly be sure that the document was false.
2. The conviction was nevertheless unsafe because of the direction under section 34 of the Criminal Justice and Public Order Act 1994. The statutory trigger is a failure to mention a fact later relied on in the defence, where the accused could reasonably have been expected to mention it when questioned. At the close of the Crown’s case, the appellant had relied on no material fact absent from his prepared statement.
3. The judge directed the jury that it could infer adversely from the appellant’s failure to mention his relationship with the deceased, the arrival of the envelope, and the later discovery of the document. Each of those matters had in fact been mentioned in the prepared statement. Although the oral evidence contained some further detail, the direction did not identify and confine itself to any genuine expansion or material variation.
4. Credibility was the essential issue in a case involving a defendant of good character. The inaccurate section 34 direction immediately followed the good-character direction and extended over five pages. It was therefore capable of significantly and unfairly undermining the appellant’s credibility. The court could not regard the conviction as safe.
5. In future, counsel should discuss the precise ambit of any section 34 direction before speeches. They should identify each specific fact relied on at trial which was not mentioned in interview, and each material way in which the trial account differs from any prepared statement or interview answer.

• Court of Appeal (Criminal Division) Allowed the appeal and quashed the conviction as unsafe because of the erroneous adverse-inference direction.
• Crown Court at Inner London On 16 November 2012, the appellant was convicted after trial of using a false instrument. On 12 December 2012, he was sentenced to 12 months’ imprisonment.