Dybicz, R v

Under Criminal Justice and Public Order Act 1994, section 34, an adverse inference from pre-charge silence is permissible only within carefully defined limits. The jury must assess whether the actual defendant, in the circumstances then existing, could reasonably have been expected to mention the later-relied-on facts. Legal advice and personal circumstances are material. Silence may provide only additional support for an otherwise strong prosecution case.

A general explanation for silence does not automatically preclude relevant cross-examination about particular omissions. The questioning must remain relevant, fair and compatible with the right to silence. A misdirection will not render a conviction unsafe where the directions as a whole fairly identify the safeguards and the error could not have misled the jury.

The appellant was convicted at Leeds Crown Court of murdering Maksym Polomka and of possessing an offensive weapon. He received life imprisonment with a minimum term of 21 years, and a concurrent sentence for the weapon offence.

On appeal, he challenged directions given under section 34 of the Criminal Justice and Public Order Act 1994, the prosecution's cross-examination about his interview silence, and the adequacy of the summing-up. He also renewed an application for leave to appeal his minimum term. The central issues were whether any defects in the section 34 directions made the convictions unsafe and whether the minimum term was manifestly excessive.

1. The appeal against conviction was dismissed and leave to appeal sentence was refused. The trial judge's directions on silence substantially followed the appropriate safeguards under section 34 of the Criminal Justice and Public Order Act 1994. The jury were told that any inference had to be fair and proper; that the appellant must reasonably have been expected to mention the facts in the circumstances; that an inference could be only additional support for the prosecution case; and that the prosecution case had to have called for an answer.

2. The judge should have more expressly linked the reasonable-expectation question to the appellant's concerns about his partner and child and his limited English. He also inaccurately summarised one matter as not having been mentioned in interview. However, the directions as a whole reminded the jury of those personal circumstances, legal advice, and the appellant's explanations for silence. The agreed list did not contain the inaccurately summarised matter. The court was satisfied that the jury could not have been misled and that the convictions were safe.

3. A defendant who advances a general explanation for interview silence does not thereby prevent cross-examination about specific omissions. The prosecution may investigate relevant details, including a specific allegation that the defendant agreed a policy of withholding names. The judge must ensure that the questioning remains relevant, does not undermine the right to silence, and does not become oppressive or unfair. Those limits were observed here.

4. On sentence, paragraph 5A of Schedule 21 to the Criminal Justice Act 2003 supplied a 25-year starting point. That starting point was not applied inflexibly. The judge was entitled to distinguish a hypothetical stabbing inside the house from the joint armed attack outside, after the unarmed victim and others had left. The 21-year minimum term was severe but within the proper sentencing range and was not manifestly excessive.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction and refused the renewed application for leave to appeal sentence: [2020] EWCA Crim 1047.
• Crown Court at Leeds: The appellant was convicted of murder and possessing an offensive weapon, and was sentenced to life imprisonment with a 21-year minimum term.