Appeal in R v Scott Marsden Highlights Flawed Application of Section 34 Adverse Inferences

Citation: [2023] EWCA Crim 1610
Judgment on

Introduction

The case law provided for analysis involves the appeal of Scott Marsden against his conviction for the offence of assault occasioning actual bodily harm (ABH) under section 47 of the Offences Against the Person Act 1861. The legal principles in question relate primarily to section 34 of the Criminal Justice and Public Order Act 1994, which addresses the effect of an accused’s failure to mention facts when questioned under caution. This article will dissect the key topics discussed within the appeal, detailing the legal principles applied, and will review the outcomes and implications of the case.

Key Facts

Scott Marsden was found guilty in the Crown Court at Truro for assaulting a 16-year-old youth, which resulted in the youth sustaining injuries including a black eye and a slash wound to the head. Another individual, James Carter, was also arrested but later acquitted of the related charges. During the investigation, Marsden gave a no comment interview but presented a prepared statement that did not disclose the full extent of his involvement or the background context leading up to the incident. During the trial, evidence was presented that expanded on Marsden’s prepared statement, revealing additional information not initially disclosed to police.

The appeal centered around the application of section 34 of the Criminal Justice and Public Order Act 1994, which permits adverse inferences to be drawn if an accused fails to mention, when questioned under caution, any fact later relied upon in their defense, and which could have reasonably been expected to be mentioned at the time. Marsden’s case raised an interesting application of this section because his co-accused sought the adverse inference direction against him—not the prosecution. While the legislation does not expressly exclude the application of section 34 by a co-defendant, it is typically only invoked by the prosecution.

The court identified several key legal principles:

  1. Accuracy of Section 34 Direction: It is essential that any potential section 34 direction is applied correctly, requiring precise identification of what a defendant has failed to mention.

  2. Relevance and Importance: The trial judge must determine whether a section 34 direction is appropriate based on the importance and relevance of the facts not mentioned.

  3. Jury Instruction: If giving a section 34 direction, the judge must instruct the jury on the explicit matters that the defendant failed to mention.

  4. A Co-accused’s Use of Section 34: The court acknowledged it is permissible for a co-accused to rely on section 34 when it relates to the prosecution of the offense, although care must be taken in its application.

Legal precedent set in R v Pektar ([2004] 1 Cr.App.R 22) was referenced, requiring that the direction identifies specific facts not mentioned during police questioning that were later relied upon in the defense.

Outcomes

The court determined that Marsden was unfairly disadvantaged, and Carter—his co-accused—was given an unfair advantage due to incorrect direction under section 34 by the trial judge. The failure to precisely detail the facts that Marsden did not mention during his “no comment” interview but later relied upon in his defense was seen as a significant misdirection. Consequently, the jury was allowed to draw adverse inferences without clear judicial guidance, which ultimately led to Marsden’s conviction.

The court concluded that Marsden’s conviction was unsafe and quashed the verdict, permitting the appeal. As adverse inferences played a crucial role in the jury’s determination of Marsden’s guilt, the imbalance in the trial judge’s directions contributed to the decision to overturn the conviction.

The Crown’s request for time to consider a retrial was denied, as the issue on appeal was clear cut, and the court deemed that prior consideration should have taken place. Thus, no retrial was ordered.

Conclusion

The R v Scott Marsden case underscores the need for judicial clarity and precision in applying section 34 directions and reinforces the principle that such directions should only be given when properly substantiated by the facts of the case. The appeal decision affirms that an accused’s right to a fair trial is paramount and that all parties, including co-accused individuals, must adhere to stringent legal standards when invoking adverse inferences based on pre-charge silence.