R v Hughes

An adverse-inference direction under section 34 of the Criminal Justice and Public Order Act 1994 is unavailable where a defendant advances no facts at trial that could reasonably have been mentioned in interview. The jury must instead be directed not to draw an adverse inference from interview silence.

A direction under section 35 must be separately justified and accurately state all material safeguards. Combining sections 34 and 35 in a single direction may create legal error and confusion. An erroneous direction on silence is fundamental, not technical. A conviction is unsafe where the appellate court cannot exclude the possibility that the error affected the verdict, even where the prosecution case was powerful.

R v Hughes was an appeal against convictions for possessing criminal property and conspiracy to supply Class A drugs. The appellant had pleaded guilty to dangerous driving but gave no answers in police interview and did not give evidence at trial.

The prosecution relied on the dangerous driving incident, the appellant's association with co-accused persons, drugs found on one co-accused, cash, material found at an address, and telephone evidence. The defence advanced no positive case and submitted that the prosecution had not proved its case.

The trial judge directed the jury together on the appellant's silence in interview and his failure to give evidence. The central issue was whether directions under sections 34 and 35 of the Criminal Justice and Public Order Act 1994 were justified and, if so, whether the combined direction was legally adequate.

Appeal allowed. The convictions were unsafe, were quashed, and a retrial was ordered.

1. A section 34 direction was not available. The appellant had remained silent in interview, had not given evidence, and had advanced no positive factual case at trial. Defence counsel had relied on the prosecution's burden and standard of proof, rather than adopted explanations given by a co-accused. There were therefore no facts relied upon at trial which the appellant could reasonably have been expected to mention in interview. The judge should have directed the jury not to draw an adverse inference from interview silence.

2. A section 35 direction was in principle available. Unlike the position considered in McManus, the appellant could have given meaningful evidence on the disputed allegation of conspiracy. However, the judge improperly combined the sections 34 and 35 directions. The resulting section 35 direction omitted important required criteria and could mislead the jury, particularly because the stated conditions were expressed as relating only to interview silence.

3. The errors were fundamental errors of law. Counsel's failure to object could not provide a complete answer. Correct jury directions on silence are essential in every criminal trial, including a short trial with apparently strong prosecution evidence.

4. The court could not exclude the possibility that the unlawful section 34 direction, alone or combined with the incomplete section 35 direction, was the tipping point in the jury's decision. The convictions could not therefore be regarded as safe.

• Court of Appeal (Criminal Division). In R v Hughes, [2021] EWCA Crim 156, the court allowed the appeal, quashed the convictions and ordered a retrial.
• Crown Court at Preston. On 7 February 2020, the appellant was convicted by a jury of possessing criminal property and conspiracy to supply Class A drugs, after previously pleading guilty to dangerous driving.