Green, R. v

An adverse-inference direction under section 34 of the Criminal Justice and Public Order Act 1994 may be appropriate although police did not ask specific questions. It is enough that, expressly or by necessary implication, the suspect was invited to give an account.

The jury must nevertheless be directed that the fact was one the suspect could reasonably have been expected to mention, and that an inference is fair and proper. They must not convict wholly or mainly because of the silence. The strength of the prosecution case is a separate condition: it must call for an answer.

A judge must also leave a properly raised defence of property to the jury. It cannot be withdrawn merely because defence of another person appears to be the principal issue.

The appellant was convicted at the Crown Court at Snaresbrook of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. CCTV showed him leaving his father’s car and punching the complainant after the complainant and another man made contact with the vehicle.

At trial, the appellant relied on defence of his father and defence of the car. In police interview he gave no comment after being invited to give an account before and after viewing the CCTV. The trial judge gave an adverse-inference direction under section 34 of the Criminal Justice and Public Order Act 1994, but directed the jury only on defence of the appellant’s father.

The appeal concerned whether the section 34 direction was available and adequate, and whether the judge wrongly withheld the defence of property from the jury.

1. Appeal allowed; conviction quashed. The conviction was unsafe because the adverse-inference direction was inadequate and because the judge effectively withdrew the defence of property from the jury. There would be no retrial, as the appellant had served his sentence.

2. A direction under section 34 of the Criminal Justice and Public Order Act 1994 was available. A suspect is questioned under caution where the circumstances expressly or by necessary implication invite an account of the matter under investigation. Specific questions are unnecessary. Here, the appellant was invited to give an account before and after viewing CCTV, and it was apparent what conduct he was being asked to explain.

3. The direction given did not adequately state the safeguards governing an adverse inference. The jury had to decide whether the facts later relied on were facts which the appellant could reasonably have been expected to mention at interview. It also had to be directed that any inference must be fair and proper, and that it could not convict wholly or mainly because of silence. The requirement that the prosecution case be sufficiently strong to call for an answer was distinct from whether there was a sensible reason for the appellant’s silence.

4. The defects could have materially affected the verdict. The appellant’s belief that his father or the car required protection was central to the lawful-defence issues. The jury might have regarded his silence as showing that the asserted defence was invented after the event, but could do so only after a correct direction.

5. Defence of property was part of the appellant’s case and was supported by evidence. The jury could have found that he believed there was a prospect of further damage to the car, even if it rejected any belief that his father was in danger. It was for the jury, not the judge, to decide whether the punch was reasonable in defence of property. The judge’s omission and subsequent comments improperly confined the jury to defence of the appellant’s father.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the conviction, and declined to order a retrial: [2019] EWCA Crim 411.
• Crown Court at Snaresbrook: On 22 August 2018, convicted the appellant of inflicting grievous bodily harm. On 19 September 2018, imposed 26 weeks’ imprisonment.
• Earlier appeal against sentence: Dismissed; the court and citation are not stated in the judgment.