GM, R. v

An omission from a conventional direction under Criminal Justice and Public Order Act 1994, section 34, does not make a conviction unsafe if the summing-up, read as a whole, makes clear that the jury must assess all the evidence and does not treat silence as conclusive of guilt.

Likewise, omission of the second limb of a conventional alibi direction is not material where the jury were correctly told that the prosecution must disprove the alibi and were directed to consider the cumulative prosecution case. A judge should not advance an alternative explanation for silence which has no evidential basis and was not put by the defendant.

The appellant was convicted at Croydon Crown Court of robbery after a jury trial. Shortly after the robbery, he and a co-accused were found in the complainant’s stolen car and fled from police. Both relied at trial on an account that they had bought the car knowing it was stolen, but denied participation in the robbery.

Following an unsuccessful and unrenewed earlier application for leave to appeal, the Criminal Cases Review Commission referred the conviction to the Court of Appeal under section 9 of the Criminal Appeal Act 1995. The appeal alleged material omissions in the judge’s directions on adverse inferences from silence and alibi.

1. Appeal dismissed. The court held that the conviction was safe. The asserted omissions in the summing-up, considered separately or cumulatively, were not material.
2. Although the judge did not state in terms that the jury could not convict wholly or mainly on an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994, the summing-up repeatedly required the jury to consider the case as a whole. Nothing in it suggested that the appellant’s silence in interview could itself establish guilt. The judge’s direction that an inference could be drawn only if the jury were sure that no account capable of standing up to scrutiny could have been given was consistent with that approach.
3. The judge was not required, and would have been wrong, to suggest an additional explanation for silence: that the appellant wished to avoid admitting handling stolen goods. That explanation had not been advanced in evidence. The appellant’s evidence was that he had acted on legal advice, and the proposed alternative would have lacked an evidential foundation and could have undermined that account.
4. The judge correctly directed that the prosecution had to disprove the alibi. The omission of the usual further warning that rejection of an alibi does not necessarily prove guilt was immaterial in this case. The jury were directed to assess all the evidence, including the cumulative strands of the prosecution case, rather than to treat rejection of the alibi as determinative.
5. The court observed that errors in directions on section 34 or alibi may in some cases vitiate a conviction, but they did not do so here. The appeal was therefore dismissed.

• Court of Appeal (Criminal Division) On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, dismissed the appeal and held the conviction safe.
• Court of Appeal (Criminal Division) An earlier application for leave to appeal against conviction was refused by a single judge and was not renewed.
• Crown Court at Croydon The appellant was convicted by a jury of robbery on 18 August 2011 and sentenced to eight years’ detention in a young offender institution.