REGINA v NATHAN SIMEON HAREWOOD

A judge need not leave an unadvanced defence to the jury unless there is evidence which, if accepted, would prima facie establish it. A defence with no factual basis should not be left.

Under section 34 of the Criminal Justice and Public Order Act 1994, whether an accused could reasonably have been expected to mention a fact when questioned under caution is ordinarily for the jury. Specific questions about that fact are unnecessary. The jury may consider the length and context of the interview, any prepared statement, and the fact’s importance to the later account. The assessment is fact-sensitive and does not depend on a rigid distinction between central facts and lesser details.

Harewood and Rehman renewed applications for leave to appeal against convictions arising from a fatal stabbing following an aggravated burglary. Harewood was convicted of aggravated burglary, murder and wounding. Rehman was convicted of aggravated burglary, manslaughter and wounding.

The applicants contended that the trial judge should have left defence of another to the jury in relation to Harewood’s stabbing of Taiye Bello-Monerville. They also challenged directions permitting adverse inferences from facts omitted during police interviews under section 34 of the Criminal Justice and Public Order Act 1994. The central issues were whether there was an evidential basis for defence of another and whether the section 34 directions were lawful and safe.

1. The renewed applications for leave to appeal were dismissed.

2. The judge correctly declined to leave defence of another. A defence not advanced by an accused should normally be left only where evidence of sufficient strength would, if accepted, prima facie establish it. There was no evidential basis on which Harewood could have been acting in defence of Rehman when he stabbed Taiye. On the evidence relied on, Rehman was no longer involved in the confrontation and was some distance away. There was still less basis for that defence in relation to the later stabbing of David.

3. Section 34 of the Criminal Justice and Public Order Act 1994 did not require the prosecution to identify a specific question about each subsequently relied-on fact. The statutory issue was whether, in all the circumstances, the accused could reasonably have been expected to mention the fact while being questioned under caution. Following R v Green [2019] EWCA Crim 411, questioning includes an express or necessarily implied invitation to give an account.

4. That issue was ordinarily for the jury once the evidential threshold was met. Relevant circumstances included the length and likely detail of the interviews, the disclosure, the prepared statements and the importance of the omitted facts to the later accounts. There was a sliding scale between important facts and peripheral detail, not a rigid requirement that an omitted fact be central.

5. The omitted matters left by the judge were significant elements of the applicants’ exculpatory accounts. The directions did not invite an inference merely from silence. They adequately directed the jury to consider whether the prosecution case called for an answer and whether the facts could reasonably have been mentioned. In any event, any error would have been incapable of affecting the safety of the convictions given the direct evidence.

• Court of Appeal (Criminal Division): renewed applications for leave to appeal against conviction were dismissed: [2021] EWCA Crim 1936.

• Central Criminal Court: following trial before HHJ Joseph QC and a jury, Harewood was convicted of aggravated burglary, murder and wounding; Rehman was convicted of aggravated burglary, manslaughter and wounding.

• Single judge: refused leave to appeal against conviction.