R v Noor

A direction under section 34 may properly address an accused's failure in interview to mention a trial account which goes beyond a fact accepted or advanced by the prosecution. The relevant question is whether the unmentioned account, viewed as a whole, was capable of supporting an inference that it was later invented or tailored to meet the prosecution evidence.

The rule against inviting an adverse inference from silence about a true prosecution fact does not prevent such a direction where the alleged omission concerns a distinct explanatory assertion which was neither agreed nor part of the prosecution case.

The applicant was convicted at Harrow Crown Court of sexual assault contrary to section 3 of the Sexual Offences Act 2003 and sentenced to 12 months' imprisonment.

He renewed his application for leave to appeal against conviction, seeking a short extension of time. The appeal concerned the trial judge's decision to give a section 34 direction following the applicant's failure in interview to say that the complainant had fallen asleep and that he had unsuccessfully tried to wake her.

The applicant contended that the direction was impermissible because the complainant's sleep formed part of the prosecution case. The issue was whether the direction invited an adverse inference from silence about a true prosecution fact, or from a distinct later explanation for the time spent in the complainant's street.

1. The court granted the extension of time but refused renewed leave to appeal against conviction. The delay was short and was not the applicant's fault.

2. The trial judge was entitled to give a section 34 direction. In interview, after seeing CCTV evidence and consulting his solicitor, the applicant remained silent when specifically asked whether the complainant had fallen asleep or had to be roused. At trial he gave a materially different account: she fell asleep, he did not know her house number, and he unsuccessfully tried twice to wake her. That account purported to explain the lengthy period spent in her street.

3. R v Kenneth James [2003] EWCA Crim 3080 did not assist the applicant. The direction did not invite the jury to infer that he had invented the fact that the complainant was asleep. Rather, it concerned his unmentioned assertion that he tried but could not wake her, an assertion which was not part of the prosecution case or agreed. The jury could infer that this explanation, and more generally his trial account, had been invented or tailored to meet the evidence.

4. In any event, the conviction was not arguably unsafe. There was a strong and compelling case: the complainant's evidence was consistent and reliable; her prompt complaints were supported by messages; and CCTV and GPS evidence showed an unexplained period in the street and movement to a quieter location.

5. The applicant was ordered under section 18(6) of the Prosecution of Offences Act 1985 to pay £81.32 for transcript costs.

• Court of Appeal (Criminal Division): In [2021] EWCA Crim 1767, the court granted a three-day extension of time but refused the renewed application for leave to appeal against conviction.

• Crown Court at Harrow: On 15 December 2020, before HHJ Thompson, the applicant was convicted of sexual assault contrary to section 3 of the Sexual Offences Act 2003. On 15 February 2021, he was sentenced to 12 months' imprisonment.