CRIMINAL

Defendant failing to answer questions at interview and giving no evidence - jury to draw adverse inferences from silence at interview only if satisfied defendant had no innocent explanation - misdirection to jury not breaching defendant's right to fair trial or rendering conviction unsafe

R v Chenia (Shokat): CA (Lord Justice Clarke, Mr Justice Pitchford and Judge Fabyan Evans): 1 November 2002

The defendant was tried on counts of conspiracy to defraud and managing a company while disqualified from doing so.

When interviewed under caution he had said 'no comment' throughout.

At trial he gave no evidence himself, but questions were put to other witnesses in order to establish a defence to the effect that the defendant was merely an innocent pawn in the conspiracy, which had really been directed by others.

The judge gave a direction under section 34 of the Criminal Justice and Public Order Act 1994 that the jury might draw an adverse inference from the defendant's silence at interview.

The defendant was convicted.

He appealed on the grounds that the judge should not have given the section 34 direction because the defendant had relied on no facts at trial, or alternatively that the direction was incorrect and breached his right to a fair trial under article 6(1) of the European Convention on Human Rights.

Robin Spencer QC and Charles Benson (instructed by Attridges) for the defendant.

Patrick Upward QC and Andrew Wheeler (instructed by the Crown Prosecution Service, East Midlands) for the Crown.

Held, dismissing the appeal, that while the defendant had to fail to mention 'any fact relied upon in his defence' before an adverse inference could be drawn under section 34, a 'fact relied upon' could be established by the testimony of a prosecution witness during evidence in chief or cross-examination; that the judge had therefore been entitled to give a section 34 direction; that the judge had nevertheless misdirected the jury by failing to make it clear that the jury should only draw an adverse inference from the defendant's failure to mention the relevant facts if they were sure that the real reason for that was that he had no innocent explanation to offer; that a verdict was unsafe only where there had been a substantial or significant departure from the norms of fairness established by the convention; and that the misdirection represented a merely technical or insubstantial departure because no reasonable jury could have held the defendant's silence against him while thinking that he might have had an innocent explanation to offer.

Conviction of murder following plea of guilty - evidence subsequently becoming available supporting plea of diminished responsibility - Court of Appeal lacking jurisdiction to substitute conviction of lesser offence where guilty plea entered before defendant put in charge of jury

R v Duggan: CA (Lord Justice Rose, Mr Justice Hughes and Mr Justice Royce): 30 October 2002

The Criminal Cases Review Commission was considering whether to refer to the Court of Appeal, under section 9 of the Criminal Appeal Act 1995, the case of an applicant, who in 1984 had pleaded guilty to murder.

It made a reference to the Court of Appeal, under section 14(3) of the Act, seeking its opinion as to what powers the court would have if the appeal were allowed, in particular whether a conviction of manslaughter might be substituted on grounds of diminished responsibility (cogent evidence having since become available that the applicant had lacked the mens rea for murder at the relevant time), and whether there was any risk that a retrial might be ordered.

John Bevan QC (Criminal Cases Review Commission) for the commission.

Ben Emmerson QC (Irwin Mitchell, Sheffield) for the applicant.

John Coffey QC (Crown Prosecution Service, Ludgate Hill).

Held, that section 3 of the Criminal Appeal Act 1968 empowered the Court of Appeal to substitute a conviction of a lesser offence where a conviction was returned by a jury but not if the conviction resulted from a plea of guilty which had been entered before the defendant had been placed in charge of the jury; and that, accordingly, on a reference by the commission the court would not be able to substitute a conviction of manslaughter.