In an article written by John Veale and posted to this website on April 19th 2017, concerning police interviews, focus was placed upon the nature and effect of the caution given at the time of interview:

The caution makes it clear that:

‘it may harm your defence if you do not mention when questioned something which you later rely on in court.’

Failure to comply with the requirements of the caution may lead to a Judge drawing such failure to a jury at trial by way of an ‘adverse inference’.

Helen Holder of Kangs Solicitors now reports upon a recent case where the effect of ‘adverse inferences’ came under scrutiny.

The Reported Case | Kangs Criminal Procedure Advisory Team

In R v Green [2019] EWCA Crim 411 the Court of Appeal quashed a conviction as unsafe due to a defective adverse inference direction, the Court having been asked to consider whether in fact the Judge was right to have given such an adverse direction.

The detailed Court of Appeal ruling made reference to:         

  • the Judge failed to direct the jury ‘that the fact that the defendant failed to mention must be one which in the circumstances existing at the time of the interview he could reasonably have been expected to mention when questioned.’
  • ‘the adverse inference should only be drawn if the jury considers that it is fair and proper to do so. That is appropriate because, even if the conditions for the drawing of an inference are satisfied, it remains a question for the good sense and fairness of the jury whether it is right to do so. That aspect of the direction was omitted by the judge.’ 
  • ‘the jury should be directed that they should not convict the defendant wholly or mainly because of a failure to mention facts in interview. Although the judge warned the jury in this case not to convict solely on the strength of the failure to make comments, he omitted to say or mainly.’
  • ‘the judge elided separate aspects of the direction that ought to have been given.’

How Can We Assist? | Kangs Dawn Raid Solicitors

This Appeal Court decision indicates that even Judges in the Crown Court may fail to properly address the implications of adverse inferences arising from a ‘no comment’ or partially ‘no comment’ interview.

It is therefore abundantly clear that the decision making and advice received at the police station in the early stages of an investigation can be pivotal when defending an allegation.

The Police and other investigating authorities such as the SFO, HMRC and NCA frequently invite people to be interviewed under caution on ‘a voluntary basis’. Such an invite should never be regarded as ‘a casual chat’ and there will be motive behind the invite.

It is crucial that specialist legal advice is obtained for every interview whether it be following arrest or ‘voluntary’.

A member of Kangs specialist 24 hour Rapid Response Team is always available to assist whatever the nature of the interview or the identity of the interviewing authority.

Who Can I Contact For Help? | Kangs National Criminal Defence Solicitors

If we can be of assistance please do not hesitate to contact any of our team:

Hamraj Kang
hkang@kangssolicitors.co.uk
07976 258171 | 020 7936 6396 | 0121 449 9888

Sukhdip Randhawa
srandhawa@kangssolicitors.co.uk
0121 449 9888 | 020 7936 6396 | 07989 521 210 (24hr Emergency Number)

Aman Murria
amurria@kangssolicitors.co.uk
0121 449 9888 | 020 7936 6396

Helen Holder
hholder@kangssolicitors.co.uk
0121 449 9888 | 020 7936 6396