Ibrahim v Rex ([2025] EWCA Crim 983): Refocusing Adverse-Inference Directions on Defence Case Statements

Introduction

The Court of Appeal (Criminal Division) has delivered an important decision clarifying how and when trial judges should invite a jury to draw adverse inferences from an accused person’s silence or omissions at different procedural stages. Mohammed Ibrahim, a 21-year-old student, had been convicted of rape, assault by penetration, and sexual assault after an incident in a Brighton nightclub. On appeal he challenged directions given to the jury about:

• Inconsistencies between his prepared written statement (served before police interview) and his oral evidence;
• His failure to mention in the Defence Case Statement (DCS) a fact that became central at trial;
• Admission of hearsay evidence from a security manager who was abroad;
• The scope of a Lucas direction on lies.

The Court (Dingemans LJ, Johnson J and HHJ Edmunds KC) dismissed all five grounds, endorsing the trial judge’s focused approach: a Lucas direction in respect of an admitted lie, a CPIA s 11 adverse-inference direction limited to the DCS omission, and no duplicate s 34 direction on the earlier prepared statement.

Summary of the Judgment

• The Court reaffirmed that inconsistencies between a police-interview prepared statement and later testimony do not automatically require a CJPOA 1994 s 34 adverse-inference direction.
• Where a material fact is omitted from the Defence Case Statement but relied on at trial, an adverse-inference direction under CPIA 1996 ss 6A & 11 is proper, provided safeguards are given.
• The admission of hearsay under CJA 2003 s 116(2)(c) remained justified even when another expected witness could not be questioned on that exchange; the judge’s limiting instruction was sufficient.
• A separate Lucas direction for an alleged, but disputed, lie to the absent hearsay witness was unnecessary; duplicative directions risk confusion.
• Overall, the Court found that the appellant enjoyed a fair trial and the conviction was safe.

Detailed Analysis

1. Precedents Cited and Relied Upon

The Court refers implicitly or explicitly to a line of authorities governing three distinct areas: adverse inferences, defence disclosure, and hearsay.

a. Adverse Inference From Silence/Omissions

• R v Cowan; R v Brixton; R v Mead [1996] 2 Cr App R 84 – leading authority on the structure of a s 34 direction.
• R v Pierre [2019] EWCA Crim 1954 – confirms that not every inconsistency triggers s 34; direction depends on “facts relied on”.
• R v Chopra [2003] EWCA Crim 213 – explains differences between silence at interview (s 34) and omissions from a DCS (CPIA s 11).

b. Defence Case Statements & CPIA Obligations

• R v Rehman & Others [2017] EWCA Crim 1731 – emphasises that an omission of a fact “intended to be relied on” opens the door to an adverse inference under s 11.
• R v Mohan [2019] EWCA Crim 222 – stresses that trial judges should identify whether the omitted matter forms part of a positive case or is purely collateral.

c. Lucas Lies Direction

• R v Lucas [1981] QB 720 – sets out the four-part cautionary test for treating lies as evidence of guilt.

d. Hearsay Evidence

• R v Horncastle [2009] UKSC 14 – affirms the admissibility of hearsay where safeguards exist.
• R v Hendy [2006] EWCA Crim 819 – discusses balancing factors under CJA 2003 s 114(2).

These cases provided the doctrinal scaffold for the Court’s reasoning in Ibrahim.

2. The Court’s Legal Reasoning

a. Prepared Statement vs CJPOA s 34

The defence argued that inconsistencies between Ibrahim’s prepared statement and his testimony demanded a full s 34 direction (with attendant safeguards). The Court disagreed:

• The “prepared statement” was not a silence; it was a positive disclosure. Section 34 targets failures to mention facts when asked.
• Where the inconsistency concerned an agreed fact (C1’s vomiting), no prejudice arose and no inference was necessary.
• Granting a s 34 direction after the judge had already told the jury not to draw an inference from the “no-comment” answers would have been “confusing and potentially damaging”.

b. Omission from the Defence Case Statement (CPIA s 11)

Ibrahim first disclosed at trial that the complainant begged him to keep quiet about her vomiting. That fact was relied upon to explain her visible distress and his own lies to security. Because it went to the substance of his defence—not mere credibility—the omission breached CPIA s 6A(1)(ca) and justified an adverse-inference direction under s 11.

The Court endorsed the trial judge’s balanced direction, which reminded jurors that they may—but need not—draw an inference, and only if satisfied the omission was deliberate and significant.

c. Lucas Direction Limited to an Admitted Lie

Ibrahim conceded he lied to security guard Mr Read (“we only kissed”). A classic Lucas direction was therefore obligatory and given. Extending that direction to an unadmitted exchange with absent witness Mr Nurain would have:

• Blurred the Lucas test (it operates when the lie is established, not contested);
• Risked over-instruction and jury fatigue.

d. Admission of Hearsay

Although Mr Nurain’s statement could not be tested in cross-examination, it satisfied CJA 2003 s 116(2)(c) (witness abroad). The judge weighed the s 114(2) factors, notably:

• Probative value: the statement illuminated what Ibrahim knew about the allegation when first challenged;
• Necessity: securing the witness would have unreasonably delayed the trial;
• Fairness: a robust limiting direction warned the jury of its limitations.

The Court of Appeal held that the later discovery that Mr Read could not corroborate the conversation did not retrospectively render the hearsay ruling wrong.

3. Impact and Significance

• Sharper delineation of the two adverse-inference regimes.
  Judges must resist “doubling-up” directions. Where a fact is first omitted from the DCS, the proper gateway is CPIA s 11; s 34 is not the default for every discrepancy arising from an earlier prepared statement.
• Guidance for defence practitioners.
  Defence teams should draft DCSs with greater specificity. Any fact intended to rebut prosecution inference—even if apparently collateral—should be disclosed or risk an adverse inference.
• Hearsay pragmatism affirmed.
  Courts may admit hearsay that targets a “credibility micro-issue”, provided appropriate jury warnings are delivered.
• Lucas direction economy.
  A single, well-targeted Lucas direction suffices; replicating it for disputed “lies” invites confusion.

Complex Concepts Simplified

1. Adverse Inference (CJPOA 1994 s 34)

If a suspect stays silent during police questioning but later relies on a fact that could reasonably have been mentioned earlier, the jury may treat that silence as weakening the defence, but only after the judge gives a cautionary “s 34 direction”.

2. Defence Case Statement & CPIA 1996 s 11

A DCS is a written summary of the defence served before trial. Omitting a fact that later becomes central can also prompt an adverse inference, but under different statutory powers (s 11), because Parliament wanted to incentivise early defence disclosure.

3. Lucas Direction

Named after R v Lucas, this instruction warns the jury that lies told by a defendant are not automatically evidence of guilt. They must consider whether the lie was:

1. Deliberate;
2. Related to a material issue;
3. Not attributable to panic, confusion or protection of someone else.

4. Hearsay (CJA 2003)

Statements made outside court and offered for their truth are normally inadmissible. Section 116 creates gateways, e.g., where the witness is abroad (s 116(2)(c)). Even then, judges balance factors under s 114(2) and usually tell the jury to treat the evidence with caution.

Conclusion

Ibrahim v Rex delivers a nuanced but practical roadmap for trial judges confronting multiple “silence/omission” scenarios. The Court confirms:

• S 34 directions are not mechanically triggered by every discrepancy;
• It is legitimate—and often preferable—to focus the jury’s attention on the DCS omission where that omission truly sharpens the dispute;
• Calibrated, non-duplicative directions (Lucas for admitted lies; CPIA for DCS breaches) promote clarity and fairness;
• Hearsay can be safely admitted when necessity, probative value and cautionary instructions co-exist.

In the wider criminal-justice landscape, the ruling underscores the statutory aim of early, candid defence disclosure and equips judges with a template for streamlined jury directions. Practitioners should heed the message: material facts—especially those intended to explain damaging prosecution inferences—must appear in the Defence Case Statement or risk haemorrhaging credibility in front of the jury.