Drawing Inferences from Positive Suggestions Put to Witnesses: R v Webber

AuthorSusan Nash
DOI10.1350/ijep.9.1.50.64791
Published date01 January 2005
Date01 January 2005
Subject MatterCase Note
CASE NOTE
50 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
T
Drawing inferences from positive
suggestions put to witnesses:
R
v
Webber
By Susan Nash
Professor of Law, University of Westminster; email susannash77@aol.com
he decision of the House of Lords in R v Webber1 raises a novel problem with
respect to the correct interpretation of the phrase ‘any fact relied upon in
his defence’ in s. 34(1)(a) of the Criminal Justice and Public Order Act 1994.
This provision permits inferences to be drawn from the accused’s failure to mention
in interview any fact which is later relied on by the defence at trial. The court
considered that while asking a probing question in cross-examination that merely
puts the prosecution to proof will not invoke an adverse inference direction from the
trial judge, putting a positive suggestion to a witness is sufficient to amount to
reliance on a fact for the purposes of s. 34, even though the witness does not adopt it.
Adverse inference directions should now be given not only when the defence gives or
adduces evidence but also if defence counsel puts specific and positive suggestions to
prosecution witnesses, whether or not the witness accepts them. Before directing the
jury, the trial judge will need to determine whether counsel is merely testing the
prosecution evidence or advancing a positive case. If in doubt the judge should ask
counsel, in the absence of the jury, to make its position clear.
The facts
Robert Webber was convicted of conspiracy to murder and possession of a firearm.
The prosecution case, which was based on three incidents, was that Webber had been
present at the time of a serious assault and drove the car in which the attacker
escaped from the scene of the crime. In police interview, Webber consistently
1 [2004] UKHL 1.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2005) 9 E&P 50–54

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