Lies of the Accused and the Lucas Direction R v Murray [2016] EWCA Crim 1051
| Date | 01 December 2016 |
| Author | Damian Warburton |
| DOI | 10.1177/0022018316678966 |
| Published date | 01 December 2016 |
| Subject Matter | Court of Appeal |
must be held, at which the defendant’s mens rea is not in issue, a different type of finding is reached than
in ordinary trials, and judges have different (and limited) disposal options, including the option to make a
hospital order. The significant difference between the two ou tcomes supports a contention that the
distinction between ‘undesirable’ and ‘unfit’ should be greater than envisaged in RvFriend. A broad
definition of ‘undesirable to give evidence’ would ensure that vulnerable defendants who are fit to plead,
yet suffer from a condition which may affect their testimony, are not disadvantaged by their decision to
remain silent. In respect of the present case, given that the trial judge considered the appellant’s mental
health an absolute bar to cross-examination, there can be little doubt that he was unfit to plead rather than
it being undesirable for him to give evidence.
Abenaa Owusu-Bempah and Natalie Wortley
Lies of the Accused and the Lucas Direction
R v Murray [2016] EWCA Crim 1051
Keywords
Evidence, lies, Lucas direction, police station interview
The appellant (M), a security guard at a retail shopping centre, was convicted after trial of offences of
rape, assault by penetration and sexual assault. The Crown’s case was that M led the victim to a secluded
area not covered by the centre’s CCTV and there attacked her. His version of events, which at all times
was a denial that any sexual activity had occurred, differed materially during his evidence from the
account he had related to police during his interview.
In his first police interview the appellant had said that, while he admit ted beingi n the relevant place
at the mate rial time, he was unaware that the complainantwas even present. A little less than two weeks
later the police interviewed him again and played to him CCTV footage that showed him and the
complainant entering that area together, and leaving again a few minutes later in such circumstance that,
in the view of the Court of Appeal, it would have been impossible for him not to have been aware of her
presence.
At trial a different account had been advanced by the appellant, namely that he had invited the
complainant to join him as he conducted security checks, and that she did so. Despite having accepted
that the complainant accompanied him on his security checks, and despite the fact that CCTV showed
them both entering and later leaving the loading bay, which was the place where the complainant had
alleged the attacks happened, M continued to deny that he was aware that the complainant was present in
the bay. Furthermore, he claimed to have no recollection that he had told the police any different. He
maintained his denial of sexual activity.
During cross-examination it was put to M that he had liedtopoliceduringinterview.Hedeniedthathehad
done so. No judicial direction on the evidential significance of a defendant’s lies was given to the jury. By their
unanimously having convicted him, the jury evidently rejected the varying accounts that M had given to the
police and to them in evidence, and therefore must have formed the view that those accounts were indeed lies.
M appealed on the basis that the trial judge ‘ought to have given a Lucas direction’ (at [23]) in case
the jury considered, as it evidently transpired that they did, that the appellant had been lying in his police
interview when he asserted that he had not arranged to meet the complainant, and/or in his evidence that
he had been unaware of her presence in the loading bay.
396 The Journal of Criminal Law 80(6)
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