Wainwright, R. v

Where interview lies and a later failure to mention defensive facts concern distinct issues or have different explanations, a trial judge may give separate directions on lies and section 34 of the Criminal Justice and Public Order Act 1994. Combining the directions remains preferable where feasible, particularly where the same explanation is advanced for both matters.

A lies direction must make clear that a lie may have an innocent explanation and cannot itself prove guilt. A section 34 direction must identify the statutory safeguards, including that an adverse inference must be fair and proper and cannot be the sole or main basis for conviction. Directions must be assessed in the context of the summing-up as a whole.

The applicant was convicted of murder at the Crown Court at Bradford before Goss J and sentenced to life imprisonment with a minimum term of 25 years. He applied for leave to appeal against conviction.

At his first police interview he denied being present or involved and attributed footage to his twin brother. At trial he admitted those lies, accepted a limited involvement in events, and explained the lies by his relationship with the police and fear of being labelled a grass. At a second interview he gave no comment answers on legal advice.

The trial judge gave both a lies direction under R v Lucas and a direction under section 34. The central issue was whether the judge should instead have given only one direction, and whether the directions given were inadequate or unfair.

1. The application was dismissed. The separate lies and section 34 directions were sustainable and did not render the conviction unsafe.

2. The guidance in R v Hackett did not impose an either/or choice. A combined direction will usually be preferable in the straightforward case where the alleged lie and the later omission concern the same matter and have the same explanation. Here, however, the applicant gave one explanation for his first-interview lies and a different explanation for his second-interview silence. The directions addressed related but distinct issues. Giving them separately, at the same time, assisted rather than confused the jury.

3. The lies direction contained the necessary Lucas protections. The judge explained that lies are not necessarily evidence of guilt, identified the applicant's asserted non-guilty reasons for lying, and directed that the lies could support the prosecution case only if the jury rejected those reasons. The jury were also told that they could not convict wholly or mainly because they found that he had lied. The conventional examples of innocent reasons for lying are not a mandatory formula; the direction must address explanations that are apt to the case.

4. The section 34 direction was also correct. A jury must be directed that the prosecution case clearly called for an answer, that there was no sensible explanation for the omission other than the absence of an answer capable of withstanding scrutiny, and that any inference must be fair and proper. It must not convict wholly or mainly on that inference. The judge had clearly given those generic criteria shortly before and expressly incorporated them when directing on the applicant's case. Legal advice to remain silent did not automatically prevent an adverse inference.

5. In a postscript not affecting the outcome, the court indicated that it would have assisted for the relevant generic directions to have been included in the written directions and shown to counsel in advance.

• Court of Appeal (Criminal Division): The applicant's application for leave to appeal against conviction was dismissed.
• Crown Court at Bradford: Goss J convicted the applicant of murder on 10 March 2020 and imposed life imprisonment with a 25-year minimum term on 11 March 2020.