Black v R.

An adverse inference under Criminal Justice and Public Order Act 1994, section 34, may be left to a jury only where the prosecution case at interview was sufficiently strong to call for an answer. The jury must assess the circumstances then existing, including what was known to the accused and any disclosure made.

Evidence need not reproduce every interview question if it provides a sufficient basis for that assessment. A direction remains subject to safeguards: the jury must consider any explanation for silence, decide whether an inference is fair and proper, and must not convict wholly or mainly upon it.

An omission from a defence statement may also be considered where a central factual assertion could fairly have been disclosed despite later service of further prosecution material.

The appellant was convicted at the Crown Court at Liverpool of conspiracy to commit fraud by false representation arising from the sale of solar panels. The prosecution alleged that customers were dishonestly promised repayment of purchase and installation costs through investment schemes and insurance, although neither adequate investments nor insurance were in place.

At interview the appellant answered no comment. At trial he relied, among other matters, on an asserted belief that an investment scheme underpinned the promised repayments and that a co-defendant had told him insurance was in place. He also relied on matters omitted from his defence statement.

He appealed against conviction and renewed an application for permission to appeal. The central issues were whether the evidence justified a section 34 direction, whether the defence-statement direction was proper, and whether the conviction was safe.

1. The appeal and the renewed application for permission to appeal were dismissed. The judge was entitled to leave an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994 to the jury.

2. Although the requirement that the prosecution case at interview must clearly call for an answer is not expressed in section 34 itself, it was an accurate statement of law. R v Condron [1997] 1 WLR 827 and R v Petkar [2003] EWCA Crim 2668 confirmed that safeguard. If nothing has been said or shown to an accused at interview which calls for an answer, an adverse inference would be wrong.

3. There was sufficient evidence in this case for the jury to assess the strength of the prosecution case at interview. The appellant had confirmed that he had lived through the relevant events and had received disclosure. The essential features were readily understood by an intelligent and articulate person: substantial customer funds had been obtained on promises of repayment, very little had been invested, and no insurance had been arranged. The jury could therefore consider whether his later assertions about insurance and investment ought to have been mentioned. The direction also made clear that he could not be convicted wholly or mainly on the adverse inference.

4. The defence-statement ground was not arguable. Although much prosecution material was served late, the appellant had earlier received a detailed case summary identifying the central absence of insurance. That circumstance did not prevent the judge from leaving to the jury, fairly and with appropriate qualifications, whether the omitted factual assertions ought to have appeared in the defence statement. There was no good reason for the absence of a supplementary statement before trial.

5. Accordingly, the directions disclosed no error of law and there was no basis for finding the conviction unsafe.

• Court of Appeal (Criminal Division) — in [2020] EWCA Crim 915, dismissed the appeal against conviction and the renewed application for permission to appeal.
• Crown Court at Liverpool — the appellant was convicted on 29 August 2018 of conspiracy to commit fraud by false representation and sentenced on 2 October 2018.