Revisiting the Old Lies – Charley Weldrick Considers Two Recent Authorities on Lucas Directions

That defendants can lie for any number of reasons, some of which are innocent, has been well established since the case of R v Lucas [1981] QB 720. The Court of Appeal recently revisited Lucas directions and provided some insight into their limitations, both in content and suitability.

R v Bhatti [2025] EWCA Crim 8

This case, in which Edward Henry KC represented the appellant, concerned an appeal against convictions for terrorism and explosives offences. The facts were that a search of the appellant’s property revealed material which appeared to be linked to terrorism, in the form of books espousing radical beliefs and handbooks on the production of explosives, as well as a wealth of functional materials for the production of explosives such as chemical ingredients, equipment and indeed explosive material (nitroglycerine) which the appellant had created himself. The eventual defence case was that the appellant was autistic and this was all a product of experimentation and research, unconnected to terrorism or any nefarious intention.

When interviewed by the police about the offences, the appellant claimed that he had not created explosives and that he did not have nitroglycerine. The interview contained multiple lies of this kind, in respect of which a Lucas direction was given to the jury. That direction was the subject of part of the appeal against conviction. 

It was common ground that the defendant, when asked whether he had made any explosives, deliberately lied. The reason given in evidence for this was that he ‘thought the police were trying to get him in trouble”. The relevant ground of appeal, found at paragraph 33 of the judgment was:

“The court was given an inadequate direction about lies told by the defendant, that did not include the possibility that he had lied out of guilt or shame regarding less serious behaviour to bolster a genuine defence. When this deficiency was drawn to the attention of the court, the court declined to revise the original direction, compounding the original error.”

When the trial judge gave the jury a Lucas direction (set out at paragraph 30 of the judgment), she offered two examples of innocent reasons a defendant may tell a lie – a defendant may lie to disguise that he had been cheating, or about driving at all on a particular occasion in order to disguise that he had been driving without a licence rather than disguising the fact that he was driving to a bank robbery. 

The argument advanced on behalf of the appellant was that the judge should have directed the jury that lies “may have been told for a reason which was “innocent” in that the appellant was principally motivated by a concern to rebut the suggestion that he was a terrorist”. When this was raised with the trial judge in the absence of the jury, the trial judge declined to alter the direction given, concluding that the appellant had “failed to make a clear case on this issue and [she] declined to make it clear for him”. Edis LJ endorsed this stance: “Where a defendant, expertly represented, has given evidence over a long period of time and been asked in chief and in cross-examination why he told lies, and failed to explain clearly what his reason was, he cannot, as a matter of right, demand the judge improve that evidence” (paragraph 55). 

The Court of Appeal went further at the end of that judgment where Edis LJ acknowledged that, in fact, the trial judge could have dealt with the matter by way of an adverse inference direction which would have been less favourable to the appellant. The appeal was therefore dismissed.

The appeal gave rise to valuable guidance as to the manner in which, and when, a Lucas direction ought to be given. 

Edis LJ observed at paragraph 61: “We consider, with respect to the judge, that the lies direction could have been clearer and structured in a way which would have avoided this appeal” and went on to suggest that, where directions in relation to lies are given, they should be in writing and it is the role of the prosecutor to decide what lies to rely on or adverse inferences to seek, and not that of the judge. At paragraph 63, Edis LJ went on to specifically suggest that the approach of giving legal directions in writing ought to be applied to legal directions given after speeches as well as those given beforehand. 

R v Hussain [2024] EWCA Crim 228

The second recent case on Lucas directions concerned an appeal against a conviction for rape, relating to the alleged sexual exploitation of the complainant (“RS”) by a number of men in West Yorkshire. RS, when she was around the age of 13, began spending a lot of time drinking and smoking cannabis with Asian men and then having sexual intercourse with them. During this period of time she came to know the appellant and on one occasion was taken to his home address, where she said he vaginally raped her on two separate occasions. RS kept diaries of this time and later positively identified the appellant and was able to take the police to the address at which the offences were committed, which was in fact linked to the appellant. The defence case was alibi, specifically that he was in Pakistan, and mistaken identity.

The conviction was appealed on two grounds in relation to the alibi evidence. These were that:

“Ground 3: the judge failed to properly direct the jury as to the approach that they should take if they rejected the appellant’s alibi, namely that they should not convict him solely on the basis that his alibi was false;

Ground 4: the judge failed to give a lies direction to the jury for them to apply if they rejected the appellant’s alibi. The direction was given in relation to the co-accused Ali and the lies that he had said in interview. However, the jury should have been told that they should also apply this direction to false alibi”

The appeal was dismissed, in part due to the strength and cogency of the evidence against the appellant. In paragraph 47 of the judgment, Whipple LJ also made clear that directions to be given in a case of this kind were a matter for the trial judge’s discretion, as emphasised in R v Wainwright [2021] EWCA Crim 122. Finally, in that same paragraph Whipple LJ considered that the giving of a s34 direction which had warned the jury that they should not use the appellant’s failure to mention his alibi in interview as the sole/main basis of conviction was sufficient and a lies direction as well was unnecessary. 

Comment

Whilst neither judgment changes the underlying principles in relation to Lucas directions, they underscore of the importance of proper discussion and drafting of legal directions. 

They are also a reminder that Lucas directions cannot be a panacea and cannot make up for a defendant who has not been sufficiently clear in evidence, nor indeed where alibi evidence may be disbelieved; and that there can be other more suitable mechanisms available when directing a jury. Lucas directions are a specific tool with specific applications, and whether in their content or suitability to a particular case defence practitioners ought not to ask too much of them.