Ground 5: Direction on "no comment" interview
224. Mr Bevan seeks leave to raise a further ground of appeal, though one that he fairly describes as a "make-weight" point. It relates to a passage in the judge's summing up in which he referred to the appellant's interview by the police following her arrest for the murder of Christopher. The judge dealt with the relevant part of the interview in these terms:

"The officer, you may remember, put to [the appellant] the similarities between the deaths of the two babies, their age, the time of death, both in the bedroom when she was on her own and both in a bouncy chair and the fact that three medical experts were saying that both deaths were unnatural. Her solicitor advised her not to comment on that in the absence of disclosure of the reports and she accepted her solicitor's advice.

Some criticism is made by the prosecution of the defendant's failure at that time to dispute that both children were in the bouncy chair in view of her subsequent evidence that Christopher was not in a bouncy chair at the relevant time. You will obviously want to consider the whole of pages 29 to 31 of that summary that you have when you are considering that point and in particular the last question and answer on page 31 but you may think that, looking at the matter overall, she was in effect following her solicitor's advice to make no comment, which I should tell you was something she was quite entitled to do."

225. The last question and answer on page 31, to which the judge referred in particular, came after a passage in which the officer had got into confusion about the evidence of the doctors. That prompted an intervention by the appellant's solicitor, followed by the last question and answer, in these terms:

"Solicitor: Can I just say to you this highlights the difficulty of seeking to advise you in the absence of disclosure of reports, I suggest that you make no comment whatsoever about the observations that the Officer just put to you, none whatsoever.

Question: Okay, right do you have any comment to make on any of those similarities?

Answer: 'No comment'."

226. Mr Bevan submits that the judge, having correctly ruled that it was not an appropriate case for a direction as to the possibility of drawing of adverse inferences under s.34 of the Criminal Justice and Public Order Act 1994, should have gone on to direct the jury not to draw any adverse inference from the appellant's "no comment" answers. He relies on R v. McGarry [1999] 1 Cr App R 377, where it was held that when a judge had concluded that the requirements of s.4 of the 1994 Act had not been satisfied, and that therefore it was not open to him to leave the possibility of drawing adverse inferences to the jury, it was incumbent on him positively to direct them that they must not in any way hold against the accused his failure to answer questions; and that unless the jury received such a direction they would be left without any guidance as to how to regard the accused's refusal to answer, which might be seriously prejudicial.
227. We agree that, for the reasons given in McGarry, it is generally desirable, where a judge decides not to give a direction under s.34, that he should go on to give a clear direction to the jury not to draw any adverse inference from the defendant's silence. But in this case, to the extent that the judge fell short of giving such a direction, we do not consider that his approach caused any prejudice to the appellant, let alone that it was capable of undermining the safety of the conviction. The judge gave the jury a very clear indication that if they thought that the appellant was following her solicitor's advice to make no comment, no adverse inference should be drawn: that "... was something she was quite entitled to do". The passage in the interview to which he drew particular attention highlighted her solicitor's advice to make no comment. In those circumstances there was no danger of the jury, through lack of guidance, making an adverse inference which they should not have made.
228. We are reinforced in that view by the fact that the approach taken by the judge was agreed in advance with counsel. Prior to the summing up, it had been agreed that a s.34 direction was not appropriate but that it would be open to prosecution counsel to comment in his closing speech, in the same way as the point had been raised in cross-examination, on the fact that the appellant had not said anything after hearing the officer catalogue the similarities between the deaths. As a result of an observation in the defence closing speech the issue was raised again with the judge before the summing up. The judge indicated how he proposed to deal with the matter, very much along the lines of his eventual direction. Mr Bevan raised no complaint about the proposed course. Of course, the fact that an approach has been agreed in advance by experienced defence counsel does not prevent the point being raised on appeal if the approach was wrong in law; but it does tend to cast doubt on the suggestion that the approach was prejudicial to the interests of the appellant.
229. Mr Spencer drew our attention to the judgment of the European Court of Human Rights in Condron v. United Kingdom (2 May 2000). For the reasons already given, we do not consider that the approach adopted in the circumstances of the present case, with the agreement of the defence, gave rise to any unfairness or constituted a breach of the appellant's right to a fair trial under Article 6 ECHR.
230. Having dealt with the point in some detail, we give leave for it to be raised but reject it as a substantive ground of appeal.