Yusef Ibrahim v R

An adverse-inference direction may be given where a defendant omits from a defence case statement a material factual assertion on which the defence later relies. The assertion need not be a complete proof of evidence. It is enough that it forms part of the explanation advanced for important evidence or events.

A jury needs no special statutory direction before assessing ordinary inconsistencies between a prepared interview statement and trial evidence. An agreed fact, or a later clarification, does not itself engage section 34 of the Criminal Justice and Public Order Act 1994. Hearsay properly admitted through a statutory gateway remains admissible where an anticipated means of testing it unexpectedly proves unavailable, provided its significance and limitations are fairly addressed. A separate Lucas direction is not required for an alleged lie that is disputed and has been adequately put in perspective.

The appellant was convicted at Lewes Crown Court of rape, assault by penetration and sexual assault following allegations that he sexually assaulted C1 in a nightclub toilet. His case was that the sexual activity was consensual and that C1 became distressed because she vomited during consensual oral sex.

He appealed against conviction on five grounds. He challenged the directions concerning discrepancies between his prepared police-interview statement and his trial evidence, the adverse-inference direction based on his defence case statement, the admission of hearsay evidence from a nightclub security manager, and the absence of a further Lucas direction. The central issue was whether those rulings or directions rendered the convictions unsafe.

1. Appeal dismissed. The trial judge correctly directed the jury and the convictions were safe.

2. The judge was entitled to remind the jury of inconsistencies between the appellant’s prepared statement and his trial evidence without giving a section 34 direction under the Criminal Justice and Public Order Act 1994. The fact that C1 vomited was agreed. Its timing nevertheless mattered because the prosecution relied on the timing of the appellant’s disclosure as bearing on his account. The appellant’s later explanation of how he indicated a request for oral sex was a clarification, not a newly relied-on fact requiring a section 34 direction. A further direction would have been confusing, particularly as the judge had already directed that no adverse inference be drawn from the appellant’s no-comment answers after he had given a prepared statement.

3. The adverse-inference direction concerning the defence case statement was justified. Under section 6A of the Criminal Procedure and Investigations Act 1996, the appellant was required to identify material facts relied on for his defence. His assertion that C1 asked him not to disclose that she had been sick was closely connected with his explanation for her distress on leaving the toilets and for his earlier lie to security staff. Although the statement gave a detailed account of the vomiting and C1’s upset, it omitted that assertion. The judge gave the jury the necessary safeguards, including that the omission was to be ignored if the appellant’s account might be true.

4. The hearsay evidence of Mr Nurain properly passed through the section 116(2)(c) gateway of the Criminal Justice Act 2003. The judge considered the section 114(2) factors and could reasonably expect another security witness to answer questions about the relevant exchange. The later discovery that he could not do so did not retrospectively make admission wrong. The evidence remained probative of the appellant’s knowledge of the allegation and credibility, while the summing-up properly emphasised its limits.

5. No additional Lucas direction was necessary for Mr Nurain’s account. Unlike the appellant’s admitted lie to Mr Read, the alleged statement to Mr Nurain was disputed. A further direction risked unnecessary complication, and the judge had sufficiently cautioned the jury about the limited use of Mr Nurain’s evidence.

6. In any event, the court was satisfied that the conviction was not and might not be unsafe. C1’s evidence was supported by her immediate complaints and her visible distress on CCTV. The jury was entitled to reject the appellant’s account.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2025] EWCA Crim 983.
• Crown Court at Lewes: The appellant was convicted on 18 March 2024 of rape, assault by penetration and sexual assault, and sentenced on 30 April 2024.