Introduction

The case of Harewood, R. v ([2021] EWCA Crim 1936) presented significant legal questions regarding the application of the defence of another and the drawing of adverse inferences under Section 34 of the Criminal Justice and Public Order Act 1994. This commentary delves into the background of the case, the judicial findings, and the broader implications for English criminal law.

Summary of the Judgment

On the night of 18 June 2019, David Bello-Monerville was fatally stabbed near his residence in North London by Nathan Harewood, who was also involved in the aggravated burglary of David's flat alongside Rehman and Appiagyei. Harewood was convicted of aggravated burglary, murder, and wounding under Section 20, while Rehman and Appiagyei received convictions for similar charges, including manslaughter for Rehman.

Harewood and Rehman appealed their convictions on two main grounds:

1. The trial judge erroneously excluded the defence that Harewood acted in defence of Rehman during the assault on Taiye Bello-Monerville, thereby undermining the safety of their convictions.
2. The trial judge improperly directed the jury to draw adverse inferences from their failure to mention certain facts during police interviews, pursuant to Section 34 of the Criminal Justice and Public Order Act 1994.

The Court of Appeal dismissed both appeals, upholding the original convictions and affirming the trial judge’s handling of both legal issues.

Analysis

Precedents Cited

The judgment referenced several key cases that shaped the legal reasoning:

• R v Bonnick [1978] 66 Cr App R 266: Established that a defence should be left to the jury if there is sufficient evidence supporting it.
• Director of Public Prosecutions (Jamaica) v Bailey [1995] 1 Cr App R 257: Emphasized that ill-founded defences without factual support need not be left to the jury.
• R v Mula [2013] EWCA Crim 1293: Reiterated that a jury must independently evaluate the viability of a defence based on the evidence presented.
• R v Argent [1997] 2 Cr App R 27: Outlined the six formal conditions under which adverse inferences can be drawn under Section 34.
• R v Green [2019] EWCA Crim 411; 2019 4 WLR 80: Clarified that adverse inferences can be drawn even without specific questions being asked during police interviews.

Legal Reasoning

The Court of Appeal meticulously examined whether the trial judge erred in excluding the defence of another and in permitting adverse inferences from the defendants' silence during police interviews.

1. Defence of Another

The appellants argued that the trial judge incorrectly excluded the possibility that Harewood acted in defence of Rehman during the stabbing of Taiye BM, which they contended undermined the conviction’s safety. However, the Court found no merit in this argument, noting that the evidence did not support the notion that Harewood was defending Rehman. The testimonies indicated that Rehman was not engaged in the conflict at the relevant moment, thereby negating the applicability of a defence of another.

2. Adverse Inferences under Section 34

The second ground challenged the judge's direction allowing the jury to draw adverse inferences from Harewood and Rehman’s failure to mention specific facts during their police interviews. The Court upheld the judge’s decision, finding that the unmentioned facts were significant and central to the defendants' accounts, thereby justifying the potential for adverse inferences. The Court affirmed that:

• The unmentioned facts were of considerable importance to the defendants' defence.
• The length and nature of the police interviews implied that the defendants were expected to mention these facts.
• The fact that the defendants provided prepared statements that omitted these details strengthened the case for adverse inferences.

The Court emphasized that under Section 34, the mere failure to mention pertinent facts during questioning can justifiably lead to adverse inferences, especially when those facts are significant to the defence's narrative.

Impact

This judgment reinforces the judiciary's stance on two critical aspects of criminal law:

• Defence of Another: Courts must carefully scrutinize the evidence before allowing such defences, ensuring they are substantiated and not speculative.
• Adverse Inferences: The ruling clarifies the application of Section 34, affirming that adverse inferences are permissible when defendants fail to mention significant facts during police interrogations, provided there is a reasonable expectation for such disclosures.

Future cases will likely reference this judgment when addressing similar issues, particularly concerning the balance between a defendant's right to silence and the prosecution's ability to draw reasonable inferences from such silence.

Complex Concepts Simplified

Defence of Another

Definition: A legal defence where a defendant argues that they committed an offence to protect another person from harm.

In this case, Harewood attempted to assert that he stabbed Taiye BM in defense of Rehman. However, the evidence did not support this claim, as Rehman was not actively engaged in the conflict at that moment.

Section 34 - Adverse Inferences

Definition: Section 34 of the Criminal Justice and Public Order Act 1994 allows a jury to draw negative conclusions from a defendant's failure to mention certain facts during police questioning.

Key Points:

• An adverse inference can be made if the defendant could reasonably have been expected to mention the fact during questioning.
• The failing to mention such facts must be significant to the case.
• The court must assess whether there is sufficient ground to allow the jury to draw such inferences.

In Harewood's case, the court concluded that the unmentioned facts were significant and that the defendants could reasonably have been expected to disclose them, thereby justifying the possibility of adverse inferences.

Conclusion

The Harewood, R. v judgment serves as a pivotal reference in understanding the boundaries and applications of the defence of another and the conditions under which adverse inferences can be drawn from a defendant's silence during police interrogations. By upholding the trial judge's decisions, the Court of Appeal underscored the necessity for robust evidence before allowing such defences and clarified the circumstances under which adverse inferences are permissible.

For practitioners and scholars alike, this case reinforces the importance of comprehensive police questioning and the strategic considerations defendants must navigate when choosing to exercise their right to silence. Moreover, it delineates the judiciary's role in ensuring that legal defences are substantiated by evidence, thereby maintaining the integrity of the criminal justice system.

Moving forward, Harewood, R. v will likely influence how courts approach similar cases, especially those involving complex interactions between defendants' rights and prosecutorial strategies. It emphasizes the delicate balance courts must maintain in safeguarding defendants' rights while ensuring that the prosecution can effectively present a coherent and comprehensive case.