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 fact relied on in his defence for the purpose of section 34. ‘Since the object of section 34 is to bring the law back into line with common sense, we think it clear that ‘fact’ should be given a broad and not a narrow or pedantic meaning. The word covers any alleged fact which is in issue and is put forward as part of the defence case: if the defendant advances at trial any pure fact or exculpatory explanation or account which, if it were true, he could reasonably have been expected to advance earlier, section 34 is potentially applicable.’ and ‘a defendant relies on a fact or matter in his defence not only when he gives or adduces evidence of it but also when counsel, acting on his instructions, puts a specific and positive case to prosecution witnesses, as opposed to asking questions intended to probe or test the prosecution case.’


Lord Bingham of Cornhill, Lord Slynn of Hadley, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe


[2004] UKHL 1, Times 23-Jan-2004, [2004] 1 WLR 404


House of Lords, Bailii


Criminal Justice and Public Order Act 1994 34(2)(d)


England and Wales


CitedRegina v Sullivan CACD 1966
The defendant had refused to answer any questions at his trial. The court asked what significance could be atached to his exercise of this right if he was innocent.
Held: Authority showed in many cases that a court must not draw adverse . .
Appeal fromRegina v Ashton, Lyons and Webber CACD 6-Dec-2002
The appellants had appealed sentences for conspiracy to murder. There had been an inordinate delay between leave to appeal having been granted, and the appeal being heard.
Held: The appellants’ rights had been infringed by the delay, and they . .
CitedRex v Naylor 1932
The defendant’s conviction was found unsafe because of the judge’s adverse comments on his silence. . .
CitedRegina v Gilbert CACD 1977
The defendant on a charge of murder had claimed at trial that he had acted in self-defence. He had not said anything of this sort in his police statement under caution. The trial judge had invited the jury, in the exercise of their common sense, to . .
CitedRegina v McLernon CANI 1992
D argued that the words ‘any fact relied on in his defence’ in article 3 meant that it could apply only where a fact which the accused relied on was advanced by the accused in the witness box at the trial, or by a witness called at the trial on . .
CitedRegina v Devine CANI 13-May-1992
The trial judge had drawn an adverse inference under article 3. The defendant complained that he had not relied on any fact in his defence but had simply tested the prosecution case.
Held: ‘in this case it cannot be said that the accused . .
CitedRegina v Argent CACD 16-Dec-1996
The defendant complained that, after acting on his solicitor’s advice to not answer questions when interviewed by the police, the court had allowed the jury to draw inferences from his failure. The police had failed to make such full disclosure of . .
CitedRegina v Condron, Condron CACD 17-Oct-1996
The defendants were charged with the supply of heroin. They had declined to answer police questions and it was on the record that their solicitor had advised them not to do so, on the grounds that he considered them unfit because they were . .
CitedRegina v Nickolson CACD 23-Jan-1998
D appealed against his conviction of indecently assaulting his young stepdaughter, on whose nightdress a small amount of seminal staining had been found. Giving evidence at trial he was asked by his counsel if he could think of any way in which . .
CitedRegina v Mahmood CACD 27-Jan-1998
The appellant was convicted of supplying heroin. He and his co-defendant who had pleaded guilty, had been filmed on video. The appellant did not give evidence but contended that it was the other, not he, who had supplied the heroin and received the . .
CitedRegina v Bowers, Taylor, Millan CACD 13-Mar-1998
Bowers and Millan complained that the direction given under section 34 was impermissible. The ground of complaint was that they had not relied on any fact by way of defence, but had simply put the prosecution to proof.
Held: The court asked . .
CitedRegina v Reader, Connor, Hart CACD 7-Apr-1998
Reader gave a no comment interview and did not testify at trial, because it was common ground that his counsel had done no more than put the prosecution to proof.
Held: A setion 34 direction was wrong under these circumstances. . .
CitedRegina v Hart and Mclean CACD 23-Apr-1998
D complained that the judge had relied upon an inference under section 34 when holding that he had a case to answer.
Held: The judge was wrong to do so: ‘The sort of circumstances we conceive to which paragraph (c) of subsection (2) [of . .
CitedRegina v Mountford CACD 21-Dec-1998
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 . .
CitedRegina v Bowden (BT) CACD 10-Feb-1999
The defendant was charged with robbing a McDonald’s restaurant. He had refused to answer questions when interviewed on arrest, and his solicitor had put on record that this was on the grounds that the solicitor did not think the evidence strong . .
CitedRegina v Gill CACD 2001
. .
CitedRegina v Wisdom and Sinclair CACD 10-Dec-1999
Rarely if ever could a section 34 direction be appropriate on failure to mention an admittedly true fact at interview. Since the adverse inference in question is that a matter not mentioned at interview is likely to be untrue, there is no room for . .
QualifiedRegina v Hearne and Coleman CACD 4-May-2000
D appealed a conviction after direction under s34.
Held: The appeal failed. ‘Section 34 is designed, in part at any rate and perhaps principally, to deal with the sort of situation which not infrequently arises where a defence is advanced . .
CitedRegina v Bowden (BT) CACD 10-Feb-1999
The defendant was charged with robbing a McDonald’s restaurant. He had refused to answer questions when interviewed on arrest, and his solicitor had put on record that this was on the grounds that the solicitor did not think the evidence strong . .
CitedRegina v Milford CACD 21-Dec-2000
D was charged with three co-defendants with conspiring to import cannabis. He gave a largely no comment interview to the interviewing customs officer, but at trial said that the contacts with his co-defendants were innocent. Since this account had . .
CitedRegina v Chenia CACD 1-Nov-2002
CS The defendant had made no comment replies during interview. He did not give evidence at trial, but otherwise took part, though he did not put any fact before the jury. The judge directed the jury that they . .
CitedRegina v Tibbs CACD 28-Feb-2000
The meaning of a defence as included in a defence statement refers to a defence in its general sense. Where the facts supporting a defence statement differed when the matter came to trial it was correct for the defendant to be cross-examined about . .

Cited by:

CitedBrizzalari v Regina CACD 19-Feb-2004
Limits to Requests for Adverse Inferences
In closing, prosecuting counsel had suggested that during the trial two matters had been mentioned by the defence which had not been mentioned earlier, and that the jury should feel free to draw proper inferences under the 1984 Act from that . .
CitedBeckles, Regina v CACD 12-Nov-2004
The appellant had been convicted in 1997 of robbery and false imprisonment. His case was now refererred by the Criminal Cases Review Commission. The defendant had, on advice from his solicitor refused to answer questions at the police station. The . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 08 June 2022; Ref: scu.192109