Judgments - Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) 
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HOUSE OF LORDS
SESSION 2003-04
10th REPORT
[2004] UKHL 1 
on appeal from: [2002] EWCA Crim 2782
APPELLATE COMMITTEE
Regina
v. 
Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
REPORT
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Ordered to be printed 22 January 2004
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LONDON
(HL Paper 22)
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TENTH REPORT
from the Appellate Committee
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22 JANUARY 2004
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Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
ORDERED TO REPORT 
The Committee (Lord Bingham of Cornhill, Lord Slynn of Hadley, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe) have met and considered the cause Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division)). We have heard counsel on behalf of the appellant and respondent.
1.  This is the considered opinion of the Committee. 
2.  In this appeal the House is called upon to consider the meaning of the words "any fact relied on in his defence" in section 34(1)(a) of the Criminal Justice and Public Order Act 1994. The point of law certified by the Court of Appeal to be one of general public importance is expressed in this way:
"Can a suggestion put to a witness by or on behalf of a defendant amount to a fact relied upon in his defence for the purpose of section 34 of the Criminal Justice and Public Order Act 1994 if that suggestion is not adopted by the witness?" 
3.  Section 34, so far as relevant to this appeal, provided:
"34.-(1)  Where, in any proceedings against a person for an offence, evidence is given that the accused - 
(a)  at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or 
(b)  on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, 
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies. 
  (2)  Where this subsection applies -
(a)  a magistrates' court, in deciding whether to grant an application for dismissal made by the accused under section 6 of the Magistrates' Courts Act 1980 (application for dismissal of charge in course of proceedings with a view to transfer for trial);
(b)  a judge, in deciding whether to grant an application made by the accused under - 
(i)  section 6 of the Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or
(ii)  paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);
(c)  the court, in determining whether there is a case to answer;
and 
(d)  the court or jury, in determining whether the accused is guilty of the offence charged, 
may draw such inferences from the failure as appear proper. 
(3)  Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention. 
(4)  This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above 'officially informed' means informed by a constable or any such person. 
(5)  This section does not - 
(a)  prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section; or 
(b)  preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section." 
This is the first of a series of sections of the Act having related objects. Section 35 permits, in closely defined circumstances, the drawing of adverse inferences from the failure of a defendant to testify or answer a question at his trial. Section 36 permits, again in closely defined circumstances, the drawing of adverse inferences from a defendant's failure or refusal to account for an object, substance or mark. Section 37 has similar effect where a defendant fails or refuses to account for his presence at a particular place. Even where the qualifying conditions under these sections are fully satisfied, it is always for the court or jury to decide whether in all the circumstances it is proper to draw any inference adverse to the defendant. But the sections provide that the silence of the defendant need not be treated as neutral. So much is made clear to a suspect by the terms of the caution, prescribed in paragraph 10.5 of Code C of the codes of practice made under the Police and Criminal Evidence Act 1984:
"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court". 
The facts
4.  The appellant (Robert Webber) was tried with Paul Ashton and Paul Lyons on an indictment containing four counts. Count 1 charged the three men with conspiracy to murder contrary to section 1(1) of the Criminal Law Act 1977. The particulars of the offence were that between 1 January 1995 and 12 October 1996 the defendants conspired together to murder Terence Mitchell. Count 2 was an alternative count: it was similar to count 1 save that it charged a common law conspiracy to inflict grievous bodily harm. Count 3 charged Ashton and the appellant with possession of a firearm (a Ballester Molina .45 calibre self-loading pistol) with intent to endanger life on 12 January 1996, contrary to section 16 of the Firearms Act 1968. Count 4 (on which the appellant was acquitted) raises no issue pertinent to this appeal. He was convicted on counts 1 and 3.
5.  The prosecution case on the conspiracy counts was based on three incidents of which the first took place on 11 July 1995. On that date, according to the prosecution evidence, Mitchell was attacked with a bayonet and seriously wounded. The attacker escaped in the appellant's Mercedes car. The appellant was said to be driving, with Ashton in the passenger seat. Mitchell later identified Lyons as his assailant. Mrs Stephenson, who was at the time a friend of the appellant, testified that she had heard the appellant and Lyons talking about Lyons having attacked Mitchell.
6.  When interviewed under caution in the course of the police investigation into this incident the appellant said that he was not responsible for this attack and had not been present. He denied involvement in the conspiracy and in any plan to injure Mitchell or his associates. By agreement, an edited summary of this interview was placed before the judge and the jury which misleadingly omitted reference to the appellant's denial of being present. The appellant was not asked in interview about the conversation which Mrs Stephenson said she had heard. At trial it was put to Mitchell on behalf of the appellant that he had invented his evidence that the appellant and Ashton had been in the Mercedes in the vicinity, and to Mrs Stephenson that she was lying about the overheard conversation. Neither of these suggestions was accepted by the witness.
7.  The second of the three incidents relied on by the prosecution took place on 15 August 1995. The prosecution case was that Mitchell was filling up his car at a petrol station when the appellant drove a car straight at him, hitting Mitchell's car and causing him to fall to the ground. Ashton, who was in the passenger seat of the appellant's car, got out and drew a knife. Mitchell sought refuge in the garage shop. Mrs Stephenson testified that the appellant had told her that he had pulled into the garage to fill up and that Ashton had pulled out a knife and chased Mitchell into the shop, intending to frighten him.
8.  When questioned about this incident by the police the appellant made no comment save to deny involvement in any conspiracy or plan to injure Mitchell or his associates. At trial it was put to Mitchell on behalf of Ashton that Mitchell had been carrying a knife and on behalf of the appellant that the contact between the two cars had been minimal. Ashton, who was the first defendant on the indictment, gave evidence that he and the appellant had driven on to the forecourt; that Mitchell, who was already there, had produced a knife; that he (Ashton) had not produced a knife; and that there had been no violence. There was no cross-examination of Ashton on behalf of the appellant. In his closing speech the appellant's counsel adopted Ashton's evidence that Mitchell had been carrying a knife.
9.  The third incident relied on by the prosecution to support the conspiracy counts took place on 12 January 1996, and the third (firearm) count related to this incident alone. The prosecution case was that on that date Mitchell and an associate named Watson had pulled up outside Watson's house in a van. The appellant then drove up in a Jaguar car, from the back seat of which Ashton had fired a gun. A prosecution witness identified the appellant as the back seat passenger. Mrs Stephenson testified that the appellant had told her about this incident.
10.  When questioned by the police the appellant denied being present at the scene of the shooting. Mitchell was cross-examined on behalf of the appellant and it was put to him that the appellant had instigated, through a named third party (Ruddick), a meeting with Watson; that the purpose of the meeting was to ambush the appellant when he arrived; that Ashton was not the driver of the Jaguar; that the appellant had been sitting in the back passenger seat; that Mitchell and his team had fired first; and that the Jaguar had then driven off with the appellant firing a shot into the air. All these suggestions were denied by Mitchell. Watson was cross-examined on behalf of the appellant and it was put to him that Ruddick had got in touch with him (Watson) to try and arrange for him to meet the appellant; that a meeting was arranged at his (Watson's) house; that this was a planned ambush; that the Jaguar had been driven by a man called Shaun; that the appellant had been in the back passenger seat; that Watson and his associates had fired first; that the appellant's car had then turned round; and that the appellant had then fired some shots. None of these suggestions was accepted by Watson.
11.  When summing up Ashton's case to the jury the trial judge (Clarke J) gave a conventional direction on the application and effect of section 34 of the 1994 Act. No criticism is made of that direction and we need not quote its terms. When he directed the jury on the appellant's case, the judge dealt with the three incidents seriatim. With reference to the incident of 11 July 1995 he said:
"The Prosecution also rely upon Webber's failure to answer questions on some topics. They said that Webber is relying, as part of his defence, on the fact he was not in the vicinity on 11 July 1995. Webber admits that he did not answer questions about that when interviewed on 20 January, or at any rate that is quite clear from page 53. It is perhaps not necessary to look at it. 
Well then, please approach that in just the same way as I invited you to approach the same thing in Ashton's case. But you may think that in Webber's case that is a factor which really adds nothing to the case against him." 
The judge was misled into giving this direction by the incomplete summary placed before him, but as appears from the passage quoted he discouraged the jury from drawing any adverse inference.
12.  In dealing with the incident of 15 August 1995 the judge summarised Ashton's evidence, pointed out that Ashton had not mentioned these matters when interviewed and reminded the jury of his section 34 direction. With reference to the appellant he said:
"He too refused to answer questions relating to the Haydon Street filling station incident. We do not know why. Subject to that, please approach that failure in the same way as in the case of Ashton." 
13.  On the incident of 12 January 1996 the judge directed the jury in these terms:
"Well, then, what of Webber? In the case of Webber, the case put to the witness was, as you of course recall, he had arranged a meet with Watson. Sorry, he had arranged to meet Watson to discuss the matter. He arrived in the Jaguar, the Jaguar was shot at by those in the van, so the Jaguar drove off with Webber shooting in the air. Yet he did not mention any of that when interviewed, and if you turn in this bundle to page 52, we can see that. 
Again, ask yourselves the questions whether he could reasonably have been expected to do so, and again apply the same approach as I have indicated earlier. 
In this connection, [counsel for the appellant] did not suggest that you should not take this failure into account but correctly submitted to you that the burden remains on the prosecution to prove the defendant's guilt." 
14.  The appellant did not give evidence at the trial. The judge accordingly directed the jury under section 35 in relation to that failure. No complaint is made of that direction, and it gives rise to no issue in the appeal. The issue concerns the judge's directions under section 34 because 
(1)  the appellant's case on the first incident, put to Mitchell by the appellant's counsel, was that the appellant had not been present and the judge was misled into understanding that the appellant had not mentioned that very significant fact in interview;
(2)  the appellant's case on the second incident, in part put to Mitchell by the appellant's counsel and in part by adoption of evidence given by Ashton, was that Mitchell had had a knife and that contact between the cars had been minimal, matters which the appellant had not mentioned when interviewed;
(3)  the appellant's case on the third incident, put to Mitchell and Watson by the appellant's counsel, was that the appellant had been present, that Mitchell and his associates had fired first and that the appellant had fired a shot or shots in the air, all of these being matters which the appellant had not mentioned in interview, when he had denied being present at all.
Both sides are agreed, rightly, that (depending on all the facts and circumstances of the case) section 34 may be applicable if a defendant fails to mention when questioned under caution by a constable a significant matter on which he seeks to rely in his defence at trial (a) by giving evidence of it, or (b) adducing evidence of it from another witness, or (c) putting it to a prosecution witness who accepts it. But the appellant's defence at trial did not rely on his own evidence, or any evidence called by him or any admission obtained from a prosecution witness. Can section 34 apply where the matters which the defendant failed to mention when interviewed are matters put to, but not accepted by, prosecution witnesses or matters of which evidence is given by a co-defendant which the defendant, in the submissions made by his counsel, adopts?
15.  The appellant contends for a negative answer to that question. He argues that section 34 is directed to evidence, and that the suggestions of counsel are not evidence unless or until accepted by a witness. If the rule were otherwise, trial judges and counsel would be gravely embarrassed, since it would be hard in borderline cases to know whether questions were of a probing, testing, nature, putting the prosecution to proof, or whether they amounted to the putting of a positive case. In no case until this had section 34 been authoritatively held to be applicable in circumstances such as the present. The prosecution contend that the affirmative answer to this question given by the Court of Appeal ([2002] EWCA Crim 2782, 6 December 2002, unreported; Mantell LJ and Treacy and Simon JJ) is correct. It is one thing for counsel to ask questions of a probing, testing, putting-to-proof nature ("Are you really sure you saw your assailant for half a minute?"; "When you picked out the defendant on the identification parade, you weren't really sure he was your assailant, were you?"). It is quite another for counsel, acting (as must be assumed) on the instructions of the client, to put to witnesses specific suggestions (often prefaced by "I put to you" or "I suggest") as to what occurred. Such suggestions are matters on which the defendant relies, whether or not he supports them by his own or other evidence and whether or not prosecution witnesses accept them. The same is true if the defendant's counsel, again acting (as must be assumed) on the instructions of the client, adopts evidence given by a co-defendant.
The development of the law
16.  In approaching the issue in this appeal it is instructive to trace in brief outline the development of the law. Until the enactment of section 34, judges and juries were severely constrained by a common law rule applicable in England and Wales against drawing an adverse inference against a defendant if he failed to mention during police questioning a matter on which he later relied in his defence. This rule was applied by the Court of Appeal (Lord Parker CJ, Salmon LJ and Fenton Atkinson J) in R v Sullivan (1966) 51 Cr App R 102, a case in which the defendant neither answered questions when interviewed nor gave evidence. Giving the judgment of the court, Salmon LJ said (at pp 104-105):
"On the second point taken by the appellant, the learned judge said in the course of his summing-up: 'Sullivan refused to answer any questions. Of course bear in mind that he was fully entitled to refuse to answer questions, he has an absolute right to do just that, and it is not to be held against him that he did that. But you might well think that if a man is innocent he would be anxious to answer questions. Now, members of the jury, that is really what it amounts to.' It seems pretty plain that all the members of that jury, if they had any common sense at all, must have been saying to themselves precisely what the learned judge said to them. The appellant was not obliged to answer, but how odd, if he was innocent, that he should not have been anxious to tell the Customs officer why he had been to Geneva, whether he put the watches in the bag, and so on. The difficulty, however, lies in this. It has been established by a long line of authority culminating in Davis (1959) 43 Cr.App.R 215, that a judge is not entitled in any circumstances to suggest to a jury, when a man refuses to answer any questions after having been cautioned, that, if he were innocent, it is likely that he would have answered the questions. What a judge may say to a jury when a man refuses to answer is, perhaps, not so plain. There are cases in which the comment in the summing-up upon an accused's silence is clearly unfair; Leckey (1943) 29 Cr.App.R. 128; [1944] K.B. 80 was such a case and so was Naylor (1932) 23 Cr.App.R. 177; [1933] 1 K.B. 685. There are other cases, however, and this is one of them, in which the circumstances are such that it does not appear that there is any unfairness involved in the comment. The line dividing what may be said and what may not be said is a very fine one, and it is perhaps doubtful whether in a case like the present it would be even perceptible to the members of any ordinary jury. But there can be no doubt, on the authorities, that this court must hold that, in the present state of the law, what was said to the jury in the passage from the summing-up which has been cited amounted to a misdirection." 
Thus the court held to be a misdirection a train of thought which would in its opinion inevitably have occurred to any juror with any common sense at all.
17.  The Court of Appeal (Viscount Dilhorne, Lord Scarman and Jupp J) applied the same rule in R v Gilbert (1977) 66 Cr App R 237 where the defendant to a charge of murder claimed in evidence at trial to have acted in self-defence, an explanation he had not mentioned in a police statement under caution. The trial judge had invited the jury, in the exercise of their common sense, to consider whether it was remarkable that the defendant had said nothing about self-defence. Giving the judgment of the court, Viscount Dilhorne said (at page 243):
"As the law now stands, although it may appear obvious to the jury in the exercise of their common sense that an innocent man would speak and not be silent, they must be told that they must not draw the inference of guilt from his silence." 
At page 244 he repeated:
"It is in our opinion now clearly established by decisions of the Court of Appeal and of the Court of Criminal Appeal that to invite a jury to form an adverse opinion against an accused on account of his exercise of his right to silence is a misdirection." 
The application of the rule was considered (page 243) to be in some cases "inconsistent with the exercise of common sense" and the rule itself to be (page 244) "unsatisfactory". The court suggested (page 244) that it might not be a misdirection to say simply "This defence was first put forward at this trial" or words to that effect, but Mirfield has persuasively asked (Silence, Confessions and Improperly Obtained Evidence, 1997, p 241) "What possible purpose could this serve other than to invite the jury, in 'a nod is as good as a wink' fashion, to take this into account when assessing the weight of the defence?"
18.  Even before R v Gilbert, the unsatisfactory state of the law on this question had attracted the attention of the Criminal Law Revision Committee, which in its Eleventh Report (Cmnd 4991, June 1972) recommended restriction of what it called in paragraph 28 "the so-called 'right of silence' enjoyed by suspects when interrogated by the police". In a draft bill annexed to the report, the committee proposed a clause similar in its terms to section 34 and explained (in paragraph 33 of the report) that the words "any fact relied on in his defence in [the] proceedings", arrived at after a good deal of discussion, were "intended to apply to any definite statement made by a witness at the hearing and supporting the case for the defence". This would suggest an evidential approach to the provision, such as the appellant supports. But some doubt is thrown on this approach by paragraph 36 of the report, where the committee envisage that it will usually be sufficiently clear from cross-examination of the witnesses for the prosecution whether a fact is being relied on by the defendant in his defence. The committee proposed that it should be permissible to draw adverse inferences when determining whether there is a case to answer.
19.  Effect was not given to the recommendation of the Criminal Law Revision Committee in England and Wales at the time, but article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (SI 1988/1987) was in terms very similar to what is now section 34. In R v McLernon [1992] NI 168 it was argued that the words "any fact relied on in his defence" in that article 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 behalf of the accused. It was also argued that the accused had not relied on any fact in his defence but had merely relied on the weakness of the prosecution case. The Court of Appeal of Northern Ireland (Hutton LCJ, Higgins and Carswell JJ) rejected those submissions. Giving the judgment of the court the Lord Chief Justice said:
"We consider that Mr Cahill's first submission is invalid, because art 3 permits the court to draw an inference, not only at the trial in determining whether the accused is guilty of the offence charged, but also by virtue of art 3(2)(a) in determining 'whether there is a case to answer'. Therefore, it is clear that the trial judge can draw an inference against the accused under art 3 in ruling on an application by the accused for a direction that he has no case to answer before the accused, or any witness on his behalf, has been called to give evidence. 
We also reject Mr Cahill's second submission. It is clear from what we have stated above that at a trial the accused can 'rely on a fact in his defence' within the meaning of art 3 even though neither he nor a witness called on his behalf has given evidence of that fact. One way in which we think this could happen (and there may be others which may fall to be considered in other cases) would be where defence counsel suggested a fact, which assisted the accused, to a prosecution witness in the course of cross-examination and the witness accepted it. In that instance we consider that the fact would be one relied on in his defence in those proceedings, even if no evidence was called on behalf of the accused." 
The correctness of those rulings cannot be doubted. It is, however, clear that the court was not called upon to decide whether article 3 could apply where a suggestion is put to a prosecution witness who does not accept it, and the court cannot be understood to rule out that possibility. That the court might have accepted the possibility gains some support from R v Devine (Court of Appeal of Northern Ireland, 13 May 1992, unreported) where the trial judge drew an adverse inference under article 3 and the defendant complained that he had not relied on any fact in his defence but had simply tested the prosecution case. In upholding this submission Hutton LCJ said:
"But we consider that in this case it cannot be said that the accused 'relied on a fact in his defence' within the meaning of article 3(1)(a) because all that defence counsel did was to probe the prosecution case, without suggesting a fact which the accused relied on to a prosecution witness". 
   20.  Section 34 has, predictably, spawned a considerable body of Court of Appeal authority. It is unnecessary to comment on the general guidance given in R v Condron and Condron [1997] 1 Cr App R 185 (save to observe that the summary in paragraph 15-338(c) of the 2003 edition of Archbold omits the potentially significant qualification made by Stuart-Smith LJ at p196A) and R v Argent [1997] 2 Cr App R 27. 
21.  In R v Moshaid (Court of Appeal, 27 January 1998, unreported) the appellant was convicted of supplying heroin. He and another (who had pleaded guilty) had together 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 price. The court held that a section 34 direction had been inappropriate:
"As already noted, the appellant elected not to give, or call, any evidence at trial. Therefore he did not fail at the interview at the police station to mention, in the language of section 34(1), 'any fact relied on in his defence at trial'." 
What the defence had done, it seems, was invite the jury to interpret a poor quality film in a certain way, which could scarcely engage the operation of section 34(1), but it seems that the court adopted an evidential approach to the subsection.
22.  In R v Nickolson (Court of Appeal, unreported, 4 February 1998) the appellant was convicted of indecently assaulting his young stepdaughter, on whose nightdress a small amount of seminal staining had been found. When he gave evidence at the trial he was asked by his counsel if he could think of any way in which semen might have found its way onto the nightdress, and he proffered an explanation. Since the appellant had not mentioned this explanation when questioned the trial judge gave the jury a section 34 direction. As the Court of Appeal held, the judge was plainly wrong to do so. At the time he was questioned the police and the appellant were unaware of the staining, and he could not reasonably have been expected to mention an explanation of a phenomenon of which he was unaware. That was a conclusive objection to application of the section. But the court did not, in the judgment given by Maurice Kay J, stop there, but continued:
"Thirdly, the wording of section 34(1)(a) refers to a failure 'to mention any fact relied on in his defence'. At no stage in his defence did the appellant assert as a fact that the seminal staining was due to a visit by the complainant to the lavatory. He was asked whether he could think of any explanation as to how the staining came to be on the nightdress. His answer about the complainant's visit to the lavatory was a proffered explanation but was not and could not be construed as a fact. It was more in the nature of a theory, a possibility or speculation. As it happens, the appellant had told the police in interview that he had masturbated in the bathroom just after leaving the complainant's bedroom. It is interesting to observe that whereas the language of section 34(1)(a) is about a failure to mention 'any fact relied on in his defence', the caution prescribed by the Code of Practice states: 
'It may harm your defence if you do not mention when questioned something which you later rely on in court.' 
We observe that in his directions to the jury the learned trial judge at various stages referred to 'something' and 'failure to mention the matter' whilst elsewhere referring to the failure to mention 'the fact'. In our judgment it is important that section 34 should be confined to its express terms, namely the failure to mention 'any fact relied on in his defence'. We observe that the Judicial Studies Board specimen directions scrupulously preserve and limit the direction to the word 'fact'." 
In commenting on this decision ([1999] Crim LR 61, 62), Professor Birch suggested that 
"It may be going too far to say that any speculation by D in cross-examination by which he seeks to explain away the prosecution case does not amount to reliance 'in his defence' on the facts forming the basis of the speculation." 
23.  A direction under section 34 was given by the trial judge in R v Bowers, Taylor and Millan (Court of Appeal, 13 March 1998, unreported) and it was complained by Bowers and Millan that the direction 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. The court adopted an evidential approach:
"A fact relied on may, in our judgment, be established by the accused himself in evidence, by a witness called on his behalf, or by a prosecution witness, in evidence-in-chief, or in cross-examination. In the present case, there was, it is common ground, no such fact." 
The section does not, however, refer to establishing a fact, but simply to relying on it.
24.  No help is gained from R v Reader, Connor and Hart (Court of Appeal, 7 April 1998, unreported) where 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.
25.  Section 34 was relied on by the trial judge when ruling that there was a case to answer in R v Hart and McLean (Court of Appeal, 23 April 1998, unreported). He was held to have been wrong to do so. Giving the judgment of the court, Hutchison LJ said:
"The sort of circumstances we conceive to which paragraph (c) of subsection (2) [of section 34] applies are, for example, where the defence has involved putting a positive case on behalf of the appellant, perhaps supported by documents or whatever it may be, or, a more likely example perhaps, where the defendant has chosen to refuse to answer questions when initially interviewed but some time later, after consulting his solicitor, has produced a prepared statement or has given later answers. It does not apply in circumstances such as obtained in the present case where nothing had been relied on by the defence which could bring the section into play." 
It does not appear from the judgment that the defence had put any positive case to prosecution witnesses.
26.  The defendant in R v Mountford (Court of Appeal, unreported, 21 December 1998) was convicted of possessing a class A drug with intent to supply. His defence at trial was that another man (Williams) 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 Williams in trouble. The trial judge directed the jury under section 34. It is not clear what complaint was made of the direction, but the court ruled that no 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." 
We do not find it altogether easy to understand this reasoning. The jury had to decide whether the appellant was in possession of the drug with intent to supply. Had they concluded that only one of the two men was or might be a supplier and that that one was or might have been Williams, that would have defeated the prosecution. But if Williams was the supplier, and the jury were not impressed by the appellant's explanation for not naming him, it was open to the jury to regard the appellant's failure to mention this fact as a pointer towards the untruth of that explanation, thus strengthening the prosecution case and weakening his own. Section 34 applied, and the direction was rightly given. The very similar reasoning and decision of the Court of Appeal in R v Gill [2001] 1 Cr App R 160 are open to the same criticism.
27.  Attention was drawn to a passage in R v Bowden [1999] 2 Cr App R 176, 181, where the Court of Appeal, referring to sections 34-37, said:
"The object of these sections was to weaken the protection which criminal defendants had previously enjoyed against the drawing of inferences adverse to them from such failures and refusals in the circumstances specified. Proper effect must of course be given to these provisions. But since they restrict rights recognised at common law as appropriate to protect defendants against the risk of injustice, they should not be construed more widely than the statutory language requires. There is nothing in any of these sections to suggest that Parliament intended in any way to modify the existing law on legal professional privilege." 
We would not wish to modify that statement in any way. It is indeed important, if the statutory provisions are not to be an instrument of unfairness or abuse, that the statutory safeguards are strictly observed, that jury directions are carefully framed and, in cases under section 34, that care is taken to identify the specific facts relied on at trial which were not mentioned during questioning. But it is worthy of note that the statement was made with particular reference to legal professional privilege.
28.  In R v Wisdom and Sinclair (Court of Appeal, 10 December 1999, unreported) an important point was established: that 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 the inference if that matter is agreed to be true. This approach was followed by the Court of Appeal, correctly, in R v Kenneth James B (23 October 2003, unreported).
29.  A section 34 direction given by the trial judge in R v Hearne and Coleman (Court of Appeal, 4 May 2000, unreported) was the subject of an unsuccessful challenge on appeal. In giving judgment, the court said (in paragraph 10):
"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 which has never been previously indicated even though there was sufficient opportunity to do so, as from the provisions we have read make clear would be the case where there has been an interview under caution. It is to allow the jury, in a proper case and subject to safeguards, to draw an inference from the fact that the defence advanced at trial has not been previously entered, the obvious inference being in many such cases that it was or is a sprung defence, that is a recently made up, or improvised defence. It is not the truth or otherwise of the explanation which is the chief concern of the jury, it is the fact that it has not been mentioned previously which may in an appropriate case allow the jury to draw an inference that it is a recent invention, thus assisting the jury to its ultimate conclusion as to whether or not the explanation offered at trial is true or false. That is how the prosecution attempted to employ the provisions of this section at the trial of Hearne and it was in that context that the learned judge directed the jury as he did." 
We think the penultimate sentence of that passage calls for some qualification. If a matter is relied on at trial and was not mentioned during questioning, section 34 permits the inference to be drawn that the matter would have been mentioned during earlier questioning if true and, because not mentioned earlier, is unlikely to be true. But the jury is very much concerned with the truth or otherwise of any explanation given by the defendant of his reasons for not mentioning the matter during earlier questioning, since if the defendant gives any exculpatory explanation of his failure to mention it which the jury accept as true or possibly so, it would be obviously unfair to draw any inference adverse to him from his failure to mention it.
30.  The appellant in R v Milford (Court of Appeal, 21 December 2000, unreported) 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 the trial gave evidence to show that his contacts with his co-defendants, although admitted, were innocent. Since this account had not been given in interview, the judge gave a section 34 direction. It was submitted for the appellant (paragraph 30 of the judgment) that the mischief aimed at by the section was limited to facts given in evidence, which gave rise to an inference of recent invention: since the appellant did not challenge or put in issue the evidence of the prosecution as to a number of matters but merely accepted the facts, asserting an innocent explanation, they were not appropriately made the subject of a section 34 direction at all. Giving the judgment of the court, Potter LJ explained why that argument was rejected:
"32.  There are two reasons why we reject the submission of Mr Osborne that the ambit of s.34 does not extend to cases where at trial the defendant gives a hitherto unadvanced innocent explanation for facts or events which he does not dispute occurred, but simply asserts that his own involvement was innocent by reason of matters or relationships explained by him for the first time. First, while we bear in mind the observations of Lord Bingham CJ in Bowden that the provisions of the Act should not be construed more widely than the statutory language requires, it seems to us that the words 'any fact' do not fall to be read only in the narrow sense of an actual deed or thing done but in the fuller sense contemplated by the Oxford English Dictionary of 'something that … is actually the case … hence, a particular truth known by actual observation or authentic testimony, as opposed to what is merely inferred, or to a conjecture or to fiction'. Second, it seems to us necessary to approach the meaning to be attributed to 'any fact' having regard to the apparent purpose of the statute and, in particular, the context and stage of proceedings with which s.34(1)(a) is concerned, that is to say the questioning of a suspect at a stage when the facts available to the prosecution without the benefit of any explanation of the defendant give rise to a suspicion or inference of his involvement in the crime under investigation, and the questioning is being directed to establishing whether such suspicion or inference is well founded in fact. The facts relevant to establishing whether or not the defendant is guilty of the crime in respect of which he is being interrogated go far wider than the simple matter of what might have been observed to happen on a particular occasion and frequently involve what reasons or explanations the defendant gives for his involvement in the particular event observed which, if true, would absolve him from the suspicion of criminal intent or involvement which might otherwise arise. 
33.  The significance for the jury of a failure by the defendant when first questioned to mention facts relied on at his trial is whether or not that failure is an indication that the facts which he now adopts or advances before the jury (including any explanation for his involvement in undisputed but equivocal events) can or cannot be relied on. We share the apparent view of the authors of the most recent JSB direction that the adverse inference which may be drawn is not limited to one of 'recent invention' strictly so described, but extends to a fact or explanation tailored to fit the prosecution case or which the defendant believed would not stand up to scrutiny at the time." 
We would respectfully question whether the dictionary definition of fact is of assistance in interpreting this section, since, as already explained, the section only applies where the jury conclude that the "fact" relied on is untrue. Otherwise, we would endorse these observations.
31.  In R v Chenia [2002] EWCA Crim 2345; [2003] 2 Cr App R 83 the Court of Appeal (Clarke LJ, Pitchford J and Judge Fabyan Evans) rejected the view (paragraph 24) that a defendant could only rely on a fact in his defence by adducing it in evidence by calling the defendant or another witness, but was not called upon to decide the present question. In paragraph 28 the court said:
"We can see that there is scope for argument as to whether the mere putting of a fact to a witness in cross-examination would be sufficient to amount to reliance upon it for the purpose of s.34, although we can think of circumstances in which it might be. However, it is not necessary to resolve that question for the purposes of this appeal." 
Conclusion
32.  Mr Shorrock QC for the appellant was, we think, right when he submitted that the present question has not arisen for decision in any earlier case. The authorities throw light on the problem but do not resolve it.
33.  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. When directing the jury in this case the trial judge made repeated reference to "fact or matter", which is consistent with the reference to "something" in the caution and in our view expresses the meaning of the subsection.
34.  We consider that 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. This is so whether or not the prosecution witness accepts the suggestion put. Two considerations in particular lead us to that conclusion:
(1)  While it is of course true that questions put by counsel are not evidence and do not become so unless accepted by a witness, the effect of specific, positive suggestions put by counsel on behalf of a defendant is to plant in the jury's mind the defendant's version of events. This may be so even if the witness rejects the suggestion, since the jury may for whatever reason distrust the witness's evidence. The present case provides a very good example. As Mantell LJ pointed out in paragraph 5 of the judgment under appeal, Mitchell and Watson, like the appellant and Ashton, were members of rival criminal gangs. Very positive and specific suggestions were put to Mitchell and Watson concerning the third and most serious incident of the three. The jury may well have had reservations about the evidence of Mitchell and Watson, and may well have wondered whether the alternative version put for the appellant might not be true. Common sense would suggest that the jury should be free, when considering that possibility, to ask themselves whether, if the appellant's version were true, he would not have mentioned it earlier when he was questioned by the police.
(2)  Since subsection (2)(c) of section 34 permits the court to draw proper inferences when determining whether there is a case to answer, the section may apply at a stage of the trial when the defendant has had no opportunity to give or adduce evidence, and when it will not be known (perhaps not even decided) whether the defendant will give or call evidence or not. But the court is likely to know, from questions put to prosecution witnesses, what (if any) positive case the defendant advances. It would be surprising if subsection (2)(c) were intended to apply only when, unusually, specific suggestions put to a prosecution witness are accepted by the witness.
35.  Had subsection (1) been intended to apply only where evidence properly so called is given or adduced or elicited by a defendant, we would expect the draftsman to have made that clear by using the language of evidence. As it is, the words "relied on in his defence" suggest a wider import. It is true that subsection (3) (which had no counterpart in the Criminal Law Revision Committee's draft bill) does use the language of evidence, and the draftsman may well have envisaged that evidence would be given by a defendant, which section 35 was intended to encourage. But subsection (3) was directed to timing, not to the meaning of reliance.
36.  We cannot accept that adoption of this interpretation will embarrass counsel or inhibit them in the performance of their professional duties. Mr Shorrock did not put forward any example of a situation in which there might be doubt whether counsel was putting a positive case or merely testing the prosecution evidence, and the example given by Mirfield (Silence, Confessions and Improperly Obtained Evidence, 1997, p.253) is not compelling. If counsel has no instructions to put a positive case he must confine himself to testing and probing the prosecution case. Paragraph 708 (e) of the Code of Conduct for the Bar of England and Wales provides that a barrister when conducting proceedings in court may not devise facts which will assist in advancing the lay client's case. Thus counsel may test the prosecution case by proffering alternative hypotheses, provided it is made plain that that is what they are, but may not put forward a positive case which he is not instructed to put. On the other hand, where counsel is instructed to put a positive case, there is a clear professional duty to put it to appropriate witnesses, and it should in any event have been disclosed in the defence statement before the trial: see Criminal Procedure and Investigations Act 1996, section 5; Practice Direction (Crown Court: Plea and Directions Hearings) [1995] 1 WLR 1318, paragraph 10(a); R v Tibbs [2000] 2 Cr App R 309, 314-315. Should a trial judge be in doubt whether counsel is testing the prosecution evidence or advancing a positive case, he should ask counsel (in the absence of the jury) to make his position clear, since it may well affect the direction which the judge will in due course give.
37.  Where, as happened here in relation to the second incident, defending counsel adopts on behalf of his client in closing submissions evidence given by a co-defendant, it seems to us clear that the client is relying on that matter in his defence so as to render section 34 potentially applicable.
38.  In the Court of Appeal, some criticism was made of the trial judge's failure to identify for the jury's consideration the specific matters which the appellant had failed to mention at interview. There is force in that criticism, and the need for such identification should be clearly understood. The Court of Appeal, however, concluded (paragraph 49) that "the jury was sufficiently informed about the specific matters which were to be contrasted with Webber's silence in interview", and the appellant's conviction is not rendered unsafe either by his failing in this regard or by the misdirection he was misled into giving in relation to the first incident.
Recommendation
39.  We would answer the certified question by saying that 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 of the Criminal Justice and Public Order Act 1994 even if that suggestion is not accepted by the witness. We would dismiss the appeal.
APPENDIX I 
ORDERS OF REFERENCE, ETC.
WEDNESDAY 13 NOVEMBER 2002
Appellate Committees—Two Appellate Committees were appointed pursuant to Standing Order.
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THURSDAY 27 MARCH 2003
Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division))—The appeal of Robert Webber was presented and ordered to be prosecuted subject to the procedures applicable thereto.
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MONDAY 2 JUNE 2003
Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division))—The appeal was set down for hearing and referred to an Appellate Committee.
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WEDNESDAY 26 NOVEMBER 2003
Appellate Committees—Two Appellate Committees were appointed pursuant to Standing Order.
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APPENDIX II 
MINUTES OF PROCEEDINGS
WEDNESDAY 10 DECEMBER 2003
Present:
L. Bingham of Cornhill
L. Slynn of Hadley
L. Hobhouse of Woodborough	L. Rodger of Earlsferry
L. Walker of Gestingthorpe	
The Lord Bingham of Cornhill in the Chair.		
    The Orders of Reference are read.
The Committee deliberate.
Counsel and Parties are called in.
  Mr M. Shorrock QC and Mr R. Denny appear for the appellant.
  Mr A. Jafferjee, Mrs S. Whitehouse and Miss C. Goodwin appear for the respondent.
Mr Shorrock heard.
Mr Jafferjee heard.
In part heard and adjourned until tomorrow.
MINUTES OF PROCEEDINGS
THURSDAY 11 DECEMBER 2003
Present:
L. Bingham of Cornhill
L. Slynn of Hadley
L. Hobhouse of Woodborough	L. Rodger of Earlsferry
L. Walker of Gestingthorpe	
The Lord Bingham of Cornhill in the Chair.		
    The Order of Adjournment is read.
The proceedings of yesterday are read.
The Committee deliberate.
Counsel and Parties are again called in.
Mr Jafferjee further heard.
Mr Shorrock heard in reply.
Further and fully heard.
Bar cleared; and the Committee deliberate.
A draft Report is laid before the Committee by the Lord Bingham of Cornhill.
The Report is considered and agreed to unanimously.
   Ordered, That the Lord Bingham of Cornhill do make the Report to the House.
Ordered, That the Committee be adjourned.
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