M was convicted of possessing a class A drug with intent to supply. His defence at trial was that W was the dealer and he was merely a purchaser. He had not mentioned this to the police when questioned, on the ground (he said) that he did not want to land W in trouble. The judge directed the jury under section 34.
Held: No such direction should have been given: ‘The judge gave no guidance to the jury as to how they should approach this issue. ‘The fact’ not revealed in interview constituted the defence to the charge. In other words whether ‘the fact’ not revealed was or may have been true was the issue in the case the resolution of which would determine the verdict. It is difficult to see how the jury could have rejected the appellant’s reason for not mentioning ‘the fact’ without also rejecting the truth of ‘the fact’ – the truth of each depended on the truth of the other. In our judgment, this element of circularity could only be resolved by a verdict founded not in any way upon the section 34 point but upon the other evidence in the case. A verdict of ‘guilty’ would obviously establish that ‘the fact’ not mentioned was untrue and accordingly that the explanation for not mentioning it was equally untrue. In this case, as it seems to us, the evidence which resolved the section 34 issue was the very evidence which resolved the issue in the case and therefore determined the verdict. There was, in our judgment, no evidential basis upon which the section 34 issue could have been resolved as an independent issue in the case, thus permitting an ensuing adverse inference to be used as some additional support for the prosecution’s case. This was a case which turned on the jury’s assessment of the credibility of each man – Williams (the prosecution witness) and Mountford (the then defendant). It was accordingly particularly important for the jury to have had spelt out to them that as a matter of common sense there was, for the prosecution, no mileage in the section 34 point. The jury were left to make what they could of it. It may be that they realised that it would have been unfair to draw an adverse inference given the particular circumstances. Of that, however, we cannot be sure. Superficially the point has its attractions. Our conclusion is that the verdict cannot be regarded as safe, and for that reason the conviction must be quashed.’
Judges:
Henry, Mitchell LJJ, Mellor J
Citations:
[1999] Crim LR 575, [1998] EWCA Crim 3534
Links:
Statutes:
Criminal Justice and Public Order Act 1994 34(2)(d)
Jurisdiction:
England and Wales
Cited by:
Disapproved – Regina v Gowland-Wynn CACD 26-Nov-2001
Where during a police interview, the defendant had maintained silence without stating facts which went to the heart of his defence, it was proper for the judge to refer to the section which would allow the jury to make proper inferences from that . .
Cited – Regina v Webber HL 22-Jan-2004
The defendant complained that the judge had given a direction under s34 even though his counsel had only put matters to witnesses for the prosecution.
Held: A positive suggestion put to a witness by or on behalf of a defendant may amount to a . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 07 June 2022; Ref: scu.183050