Burnett, R v

Whether an adverse-inference direction is undesirable under section 35(1)(b) of the Criminal Justice and Public Order Act 1994 depends on whether the defendant’s condition prevents him doing himself justice, not solely on any risk to health. The trial judge has a broad discretion, reviewable only on rationality grounds.

A direction must fairly convey that the prosecution case must require an answer independently of silence and that silence permits an inference only if it is attributable to the absence of an answer. Imperfect directions, including errors concerning lies or witness bad character, do not render a conviction unsafe unless material in the context of the summing-up as a whole. Sentencing must give proper effect to totality and may attach substantial weight to an elderly offender’s age and health.

The appellant, an 87-year-old former teacher at an approved school, was convicted at Newcastle Crown Court of 15 counts of indecent assault contrary to the Sexual Offences Act 1956. The offences concerned five former pupils and were alleged to have occurred during the late 1960s. The jury did not agree on three further counts.

He received consecutive sentences producing a total of 15 years’ imprisonment. With leave of the single judge, he appealed against conviction and sentence. The conviction appeal challenged directions on adverse inferences from silence, lies, complainants’ bad character, and cross-admissibility. The sentence appeal challenged the total term.

1. The appeal against conviction was dismissed. Section 35(1)(b) of the Criminal Justice and Public Order Act 1994 extends beyond cases in which giving evidence would damage a defendant’s health. It includes circumstances in which the defendant could not do himself justice in evidence. Applying R v Friend [1997] 2 All ER 101, the trial judge had a broad discretion, reviewable only on rationality grounds. The medical evidence, the appellant’s interview account, and the availability of sensitive measures at trial entitled the judge to conclude that evidence was not undesirable.

2. The section 35 direction, read as a whole, was not materially unfair. Consistently with R v Cowan [1996] QB 373, the jury were told that the prosecution case had to be sufficiently strong without silence and that an inference could arise only if the appellant had no answer capable of withstanding scrutiny. The references to fitness to stand trial and possible special measures were unnecessary or imperfectly expressed, but did not undermine those safeguards.

3. The lies direction contained an admitted legal error. The judge did not tell the jury, as required by the Lucas direction, to consider an innocent explanation such as embarrassment or shame. The error did not affect safety because the initial denial was quickly retracted and the Crown relied upon the appellant’s admissions rather than the lie.

4. The judge also misstated the effect of one complainant’s bad character by suggesting it mattered only if it made his evidence incapable of reliance. Elsewhere, however, the jury were correctly directed to assess whether prior conduct affected credibility. The summing-up did not leave the jury with a materially false approach. It was also proper to leave cross-admissibility to the jury, with directions to consider possible contamination and the appellant’s case about gossip and the timing of the allegations.

5. The appeal against sentence was allowed. The 15-year total was manifestly too high. The sentencing guidelines were not straitjackets. Proper regard to totality, the non-penetrative nature of the offences, the appellant’s age and poor health, and the public interest required a humane but punitive sentence. The court quashed the existing sentences and substituted concurrent terms producing a total of eight years’ imprisonment.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed. The appeal against sentence was allowed and concurrent sentences totalling eight years’ imprisonment were substituted.
• Crown Court at Newcastle: On 25 and 26 April 2016, the appellant was convicted of 15 counts of indecent assault. On 13 May 2016, he was sentenced to a total of 15 years’ imprisonment.