Adverse Inferences – Written Directions – Ricky Green [2019] EWCA Crim 411

The appellant was convicted of s20, inflicting grievous bodily harm. . The grounds for appeal are that the judge wrongly gave the jury an adverse inference direction under s34 of the Criminal Justice and Public Order Act 1994, that having decided to do so the terms of the direction were inadequate and failed to give the jury any direction as to one way in which the appellant put his case, i.e. defence of property.

The appellant was a man of good character and says he followed legal advice in giving a no comment interview. The submission was that there were no questions asked in interview, merely an inaccurate commentary given by the interviewing officer, so it was not a case of failing to answer questions at all, there were no questions.

The judge rejected the submission saying the appellant had been invited to give his account and explanation and concluded that a direction should be given.

The submission was repeated on appeal and also that the direction was insufficient as the jury were not directed that they could only draw an adverse inference if they concluded that the silence in interview could only be attributed to him having no answer or none that would stand up to questioning.

Held: it was plain that the appellant was being invited to give his account and deliberately chose not to do so, that disposes of the first ground of appeal. A direction was appropriate, but the one given was inadequate. Written legal directions, even in a fairly straightforward case such as this, would be useful, not only to assist the jury but also to focus the mind of the judge.

The judge’s summing-up did not refer to defence of property and was solely concerned with defence of the appellant’s father. The jury asked further questions but the result of all of this was that the issue of defence of property was withdrawn from the jury’s consideration leaving the ‘principle’ issue of defence of his father. It was therefore concluded that the conviction was unsafe, the appeal was allowed, and no re-trial was ordered as he had served his sentence already.