Friend or foe? Co-accused & section 34

• Examines the case of R v Marsden and the ability of a co-accused to seek an adverse inference under s.34 Criminal Justice and Public Order Act 1994.
• Considers how a failure to mention a fact when questioned could be utilised at trial not only by the Crown but also by a suspect seeking to strengthen the case against their co-defendant(s).

Those familiar with criminal trials will be all too aware of the dangers of a co-defendant instigating a ‘cut-throat defence’, where that co-defendant gives evidence on his or her own behalf in order to strengthen the prosecution case against a fellow accused. A co-defendant that was once an ally, strays off course and puts the blame for the offending squarely at the feet of their co-accused in order to seek to exonerate themselves. But as the old adage goes, ‘there is more than one way to skin a cat’ – and this is equally true for defendants seeking to strengthen the case against others and in turn move the spotlight away from themselves.

In R v Marsden [2023] EWCA Crim 1610, in what appears to be a legal first, Mr Carter (a co-defendant who was subsequently acquitted at trial) sought to invoke an adverse inference under s.34 of the Criminal Justice and Public Order Act 1994 from a co-accused Mr Marsden’s failure to mention, when questioned during interview, certain facts upon which he subsequently relied  at trial. The novel aspect of this was that the Crown – which was responsible for prosecuting the case – had not sought such an inference against Mr Marsden (who was subsequently convicted). As such, this raised the point of law on appeal as to whether s.34 can be relied upon by a co-accused in circumstances where the prosecution does not seek to rely upon it.

S.34, where relevant, states:

(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.

(2)

(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.

Disappointingly for practitioners, the Court of Appeal deferred determination of this interesting question until another case comes along which will permit detailed submissions on the point. For the time being, s.34 will be available to co-defendants to invoke against a co-defendant. But unlike where the Crown seeks a s.34 inference where a defendant has failed to mention when questioned, facts that he or she later seeks to rely upon, the Court of Appeal in Marsden held that in any direction to the jury, it will be essential to identify not only:

1. The precise matters which the defendant failed to mention but has relied on in his defence;
2. The circumstances existing at the time of the questioning which are capable of leading the jury to the conclusion that the defendant could reasonably have been expected to mention those matters;
3. The inference(s) which it is suggested might properly be drawn from the failure to mention the facts concerned; and
4. Any explanation put forward by the defendant as to why he did not mention those matters,

but also the questions asked by the police which the defendant could reasonably have been expected to answer by mentioning the relevant fact(s).

This emphasised requirement was contrary to the dicta in R v Harewood & Rehman [2021] EWCA Crim 1936, where the Court of Appeal considered whether a trial judge was right to give a jury a s.34 direction when the prosecution counsel had not identified in the course of cross-examination, the particular questions that had been asked but unanswered, which would have provided the opportunity to mention the facts relied upon in evidence at trial. In making a number of observations about the operation of s.34, the Court of Appeal in Harewood & Rehman noted that the language of s.34 does not impose a requirement that the unmentioned fact must be one which the accused has specifically been asked a question about. Indeed, Popplewell LJ observed that “there is no requirement that the unmentioned fact must be one about which the accused has specifically been asked a question” (at paragraph 39).

If the facts that an accused fails to mention in interview are central to his defence at trial, it is more likely that the jury may conclude that he could reasonably have been expected to have mentioned those facts when questioned, regardless of whether he was asked specifically about the facts in issue when questioned. Conversely, the less central the matter to a defendant’s defence, the less likely it is that a jury could conclude that the defendant should have mentioned the said fact unless it was shown that he had been directly asked about it when questioned under caution.

In allowing the appeal in Marsden, the Court held that the jury should not be permitted to draw an adverse inference without any clear direction from the judge as to the evidential basis upon which they might properly do so. It was therefore necessary for the direction to the jury to have identified the questions asked by the police which Marsden could reasonably have been expected to answer at the time, so that they could establish whether the facts that were not mentioned when he was questioned were indeed central to the defence advanced at trial. In other words, that they were not just facts not mentioned at interview that were later raised at trial but rather that they were matters which he relied upon in his defence. That appears to be an uncontroversial and common sense conclusion.

The trial judge, according to the judgment of the Court of Appeal, may not have been assisted in their task by counsel for Mr Carter who had not identified with any specificity the various points that Mr Marsden had failed to mention when questioned, submitting in response to a query from the trial judge that “[he] did various other things [other than the wearing of gloves], forgive me, I’m just sort of spouting them off the top of my head”. A s.34 direction was therefore inappropriately given. Despite the Court of Appeal’s recognition that there was strong evidence of guilt, the fact that allegations were made not only by the prosecution but also by the co-accused meant that Mr Marsden was unfairly disadvantaged and that the (acquitted) co-accused Mr Carter was unfairly advantaged. As a result, the conviction was found to be unsafe and was quashed.

Until the Court of Appeal is given an opportunity to consider this issue again, as well as (or in the alternative to) instigating a cut-throat defence, a defendant seeking to distance himself from a co-defendant may seek an adverse inference from his failure to mention, when questioned, a fact relied upon at trial even if the Crown does not seek such an adverse inference direction. However, unlike the situation where the Crown seeks to invoke s.34, that defendant will have to identify with specificity:

1. The precise matters which the co-defendant failed to mention but has relied on in his defence;
2. The circumstances existing at the time of the questioning which are capable of leading the jury to the conclusion that the defendant could reasonably have been expected to mention those matters (this may necessarily involve identifying the questions asked by police which could reasonably have elicited the relevant response);
3. The inference(s) which it is suggested might properly be drawn from the failure to mention the facts concerned; and
4. Any explanation put forward by the co-defendant as to why he did not mention those matters.

The advantages of doing so, and doing so properly, may well strengthen the case against a co-defendant whilst at the same time weakening the case against the defendant who is seeking the adverse inference in an effort to exonerate themselves.

Admittedly, given the absence of case law addressing the situation whereby a defendant seeks an adverse inference direction relating to a co-defendant where the Crown does not do so, practitioners may be waiting a while for this novel point of law to be authoritatively determined. However, now that the ‘cat is out of the bag’, practitioners may see more frequent use of s.34 adverse inferences against their clients from co-defendants, as they turn into quasi-prosecutors seeking to strengthen the case against their co-defendant(s). This will require solicitors to carefully consider, when representing clients in interviews under caution in multi-handed investigations, how a failure to mention a fact when questioned could be utilised at trial, not only by the Crown, but also by a co-suspect who may be sitting in the adjoining interview room at the time such consideration is being given. At that point, the client may not want to contemplate the fact that their co-accused may later ‘snitch’ on them in an effort to exculpate themselves. But such clients should be reminded that when backed into a corner, the seemingly friendly cat can quickly become the unexpected foe seeking to save its own skin.

This article was first published in New Law Journal on 13 September 2024.