R v Scott Marsden

A direction under section 34 of the Criminal Justice and Public Order Act 1994 requires careful identification of the facts allegedly omitted, the circumstances making their mention reasonably expected, the possible inferences, and the defendant’s explanation.

The judge must first decide whether any direction is appropriate. Peripheral or unimportant omissions should not found an adverse-inference direction. A general direction is insufficient. A material misdirection which unfairly disadvantages the defendant may render the conviction unsafe, even where the evidence is strong.

Following a trial at the Crown Court at Truro on 21 April 2023, the appellant was convicted of assault occasioning actual bodily harm. He admitted striking the victim but denied causing the injury alleged by the prosecution. His co-accused invited a direction under section 34 of the Criminal Justice and Public Order Act 1994, although the prosecution did not seek one.

The appeal concerned whether a co-accused could invoke section 34 and whether the recorder’s direction adequately identified the facts allegedly omitted and the basis for any adverse inference.

Appeal allowed. The conviction was quashed and no retrial was ordered.

1. The court declined to decide whether section 34 of the Criminal Justice and Public Order Act 1994 can ever be relied on by a co-accused where the prosecution does not seek a direction. The issue was left for determination in a case with fuller submissions. Such cases are likely to be rare because police questioning will seldom concern a matter relevant to a co-accused but not to the prosecution.
2. Where such a direction is sought, the judge must first decide whether it is appropriate. Precise identification of the alleged omissions assists that decision. If the matters are peripheral and unimportant, the jury should be directed not to draw an adverse inference.
3. If a direction is appropriate, it must identify precisely the matters which the defendant failed to mention but later relied on, the circumstances capable of showing that the defendant could reasonably have been expected to mention them, the inferences said properly to arise, and any explanation advanced. Where necessary, the police questions which could reasonably have been expected to elicit the matters must also be identified. The recorder’s general reference to matters not mentioned was inadequate.
4. The resulting misdirection materially disadvantaged the appellant and gave his co-accused an unfair advantage. Although the issue was narrow and the evidence strong, the court could not say that the imbalance had not affected the verdict. The conviction was therefore unsafe.
5. The court criticised the failure to address the possibility of a retrial before the hearing. It refused further time for that decision and made no order for a retrial.

1. Court of Appeal (Criminal Division): in [2023] EWCA Crim 1610, the appeal was allowed, the conviction was quashed, and no retrial was ordered.
2. Crown Court at Truro: following trial before Recorder Kenefick and a jury, the appellant was convicted of assault occasioning actual bodily harm.