Appeal against conviction allowed where the judge had misdirected the jury as to the appellant's "no comment" interview and evidence of a non-identification of the appellant had come out in an unfortunate way.Appeal against conviction for kidnapping and causing grievous bodily harm. It was alleged that the appellant ('L') forced the victim into the back of a car in High Wycombe and severely beat him with a baseball bat. L put forward a defence alibi that he had been in Reading with his sister that evening. Evidence was heard from an eye witness who said she had seen L in a car that evening in High Wycombe. L answered all the police questions during his first interview but declined to comment during the second interview. L stated that this was on the advice of his solicitor. The Crown argued that he gave no comment as, after the first interview, he had been informed that an eye witness had seen him in High Wycombe and he needed time to discuss his alibi with his sister. The judge gave a direction under s.34 Criminal Justice and Public Order Act 1994 as to his no comment interview. L objected to the direction being given as he had relied only on his alibi defence, which had been given at the first interview. The hearing was a re-trial. The first trial was aborted because the police officer who had stopped the car after the incident did not identify L in court as the man he had seen on the evening in question. This non-identification was not brought to the court's attention at the second trial until the judge had completed most of his summing up. The judge then stated to the jury that they had not had the opportunity to hear the officer cross-examined on that point and that the identification had been nine months later. L contended that this was an unfair way for the matter to be left to the jury as it virtually invited the jury to ignore the effect of the admission due to the lapse of time. L further argued that the judge's s.34 direction had been wrong.HELD: (1) When a judge considered giving a s.34 direction, it was desirable to discuss the matter with counsel before the speeches. It was unlikely that there was much of a discussion in the instant case. The judge did not specify to the jury what the precise facts were, about which L had been asked in interview, which he did not mention, which he could have been expected to mention and which he had mentioned in his evidence. The authorities and directions were clear that the judge should specify to the jury precisely what the facts were, not mentioned in interview but relied on in evidence, from which they would be entitled to draw such inference as may be proper. Accordingly there was a misdirection. (2) The evidence of the non-identification by the police officer came out in a particularly unfortunate way for the defence. (3) Given the misdirection and the situation in relation to the police officer, it was not possible to say that the jury would, without doubt, have convicted L despite the misdirection. The conviction had to be quashed.Appeal allowed.

[2003] EWCA Crim 223