R v Alissa Danks

Where a defendant has neither given evidence nor called evidence and has put the prosecution to proof, section 34 of the Criminal Justice and Public Order Act 1994 does not permit an adverse inference from a later no comment interview. Where the defence positively relies on candour or co-operation in an earlier interview, the jury may receive a summary of the later interview’s topics to assess that submission. The judge must confine the summary to that purpose and direct the jury not to hold the later silence against the defendant. The prosecution may refer to the no-comment stance in closing if it follows those directions. Alleged judicial hostility must be assessed in context; robust case management and justified criticism of counsel do not alone warrant appellate intervention.

After a jury trial at Warwick Crown Court, the applicant was convicted of conspiracy to handle stolen goods, contrary to section 1 of the Criminal Law Act 1977. She was sentenced to 21 months’ imprisonment, suspended for 12 months, with an unpaid work requirement.

Permission to appeal against conviction was refused by a single judge. The applicant renewed her application on five grounds concerning the admission and use of topics from a later no comment interview, the prosecution’s closing speech, alleged judicial animosity, and the fairness and balance of the summing-up. The central issues were whether the later interview could properly be summarised for the jury and whether any of the alleged errors made the conviction unsafe.

The renewed application for leave to appeal against conviction was refused. The court held as follows.

1. There was no challenge to the directions concerning the applicant’s decision not to give evidence under section 35 of the Criminal Justice and Public Order Act 1994. Since the applicant had not given evidence or called evidence, she had advanced no factual case which could have been raised in interview. Accordingly, the jury had to be directed not to hold her later no comment answers against her.
2. The defence had nevertheless made a positive submission that the applicant had been candid, fluent and co-operative in her first interview, while also describing the questioning as vague. In those circumstances, it was proper to admit a summary of the topics addressed in the later interview so that the jury could assess the weight of the defence submission about the first interview. The judge imposed tight limits and made clear that the later silence had no other significance. The analogy with mixed interviews, supported in the ruling by R v Sharp (1988) 86 Cr App R 274 and R v Aziz [1996] 1 AC 41, was apposite.
3. The prosecution was entitled to refer in closing to the applicant’s no-comment stance, provided it complied with the judge’s directions. Reading the relevant passage fairly and as a whole disclosed no breach of the law.
4. The complaints of judicial animosity were unarguable. The judge’s response to an improper defence submission was justified, and the remarks had to be assessed in context. Most were made outside the jury’s presence, while the comments made before the jury were not improper. The complaints did not approach the threshold for intervention illustrated by R v Lashley [2005] EWCA Crim 2016.
5. The remaining complaints about the summing-up were also unarguable. The single judge had been correct to refuse leave, and the conviction was not unsafe, there being ample evidence of guilt.

1. Court of Appeal (Criminal Division): the renewed application for leave to appeal against conviction was refused: [2024] EWCA Crim 1592.
2. Single judge: refused leave to appeal against conviction.
3. Crown Court at Warwick: following conviction after trial, the applicant was sentenced to 21 months’ imprisonment, suspended for 12 months, with an unpaid work requirement of 80 hours.