Practice and Procedure


PUBLISHED July 30, 2003

It was a misdirection to invite the jury to draw an adverse inference under s.34 Criminal Justice and Public Order Act 1994 where the defendant had given his full account in a prepared statement to the police, from which he had not departed in the witness box, and had then declined to answer police questions.Appeal against conviction on two counts of indecent assault. The prosecution alleged that the defendant ('K') took the ten-year-old daughter of a friend for a walk in a wood and twice put his hand down her trousers. After the child complained to her mother, K was arrested. He was cautioned in the proper way and the police sought to interview him. At the beginning of the interview process, a prepared statement was read out to the police by K's solicitor giving K's account and denying that he touched the girl in the way described. K declined to answer any questions asked by the police on his solicitor's advice. At trial, he gave evidence in his own defence in line with his statement and said that he had been advised by the solicitor not to answer the police questions. The judge directed the jury that it might draw an adverse inference from K's refusal to answer police questions after the reading of the prepared statement and K was convicted. On appeal, the issues were: (i) whether the purpose of s.34 Criminal Justice and Public Order Act 1994 was not only to encourage a suspect to give his full account to the police in response to an accusation made against him, but also (on pain of an inference being later drawn if he did not do so) to have that account subjected to scrutiny by police questioning at interview; and (ii) whether a suspect's silence in interview was rendered immune from later adverse inference if that course was taken because a solicitor advised it.HELD: (1) The true purpose of s.34(1)(a) was no more than early disclosure of a suspect's account and not, separately and distinctly, the subjection of that account to the test of police cross-examination. On that basis there was no room for any adverse inference to be drawn by the jury in this case where the defendant gave his full account in a prepared statement from which he did not depart in the witness box. K had mentioned all the facts on which he later relied in his defence. There was a misdirection and the conviction was unsafe. (2) Of itself the making of a prepared statement gave no automatic immunity against adverse inferences under s.34. The statement might be incomplete in comparison with the defendant's later account at trial or it might be inconsistent with that account. Further, the prosecution could not be required to adduce in evidence a wholly self-serving statement (R v Pearce (1979) 69 Cr App R 365). (3) (Obiter) The mere giving of advice to remain silent did not prevent an adverse inference being drawn under s.34 (R v Howell (2003) LTL 27/1/2003 and R v Argent (1997) 2 CAR 27 considered). It was possible that there could be a case in which, although the solicitor had given no reasons or bad reasons to stay silent, it would be wrong to draw an adverse inference under s.34 against the defendant. For instance, he might be distinctly weak or vulnerable so that it would not be reasonable to expect him to give an account to the police. That would be a matter for the jury.Appeal allowed.

[2003] EWCA Crim 1977