2 June 2009
by David ADETORO
against the United Kingdom
lodged on 30 October 2006
STATEMENT OF FACTS
The applicant, Mr David Adetoro, is a British national who was born in 1972 and is currently detained in HMP Whitemoor, Cambridgeshire. He is represented before the Court by Stephensons Solicitors, a firm of lawyers practising in Wigan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background facts
a. The events leading to the applicant’s arrest
Between June 1995 and March 1997 eight robberies and six aborted robberies took place in the Manchester area. The robbers targeted security vehicles carrying cash, banks, one post office and one supermarket. More than once, firearms were discharged. Police officers chasing the robbers were fired upon and on one occasion a lorry driver who used his vehicle to ram the robbers’ getaway car was shot and seriously injured.
The prosecution case was that the applicant joined the conspiracy in around April 1996 after his release from prison, after four of the robberies had been committed. The evidence against the applicant was almost entirely circumstantial and the case relied heavily on evidence from a police surveillance exercise carried out over a period of about one year. The prosecution argued that the applicant’s recorded movements were consistent with his playing an active part in the conspiracy.
b. The police interviews
The applicant was arrested on 21 March 1997. He denied any involvement in the conspiracy to rob and was interviewed under caution in March and June 1997. The terms of the caution were that he did not have to say anything but that it may harm his defence if he did not mention when questioned something which he later sought to rely on in court. During the interviews, he was asked to give an explanation for his movements as recorded by the police in their surveillance exercise; his association with a variety of individuals; and his whereabouts at the time of the robberies. On each occasion, he replied “no comment”.
2. Domestic proceedings
a. Crown Court trial
The applicant pleaded not guilty to conspiracy to rob and other offences arising out of the conspiracy.
At trial before the Crown Court, the applicant gave evidence in his own defence. His case was that he was not involved in the conspiracy. He claimed that he was not even aware of the robbery conspiracy or his associates’ involvement. However, he admitted being involved in the buying and selling of stolen cars and argued that the police observations showed his involvement in that business, rather than in any conspiracy to rob.
The applicant also provided answers to all the questions which he had declined to answer during the police interviews in March and June 1997. In particular, he accounted for his association with various individuals, provided explanations for why he had moved certain vehicles on certain dates, gave detailed accounts of his movements on relevant dates, provided reasons why he was observed wearing gloves on specific occasions and gave explanations for conversations recorded by covert surveillance.
The applicant was asked why he had not provided these explanations at the time of the police interviews. He responded that he had not wanted to incriminate people in relation to the stolen vehicles.
In his summing up to the jury, the judge gave the jury the following direction:
“Another matter of law, ... which I should mention, concerns the telling of lies or being untruthful. You may come to the conclusion that this defendant has told you a lie or a number of lies; I’m not suggesting that he has or he hasn’t, it is simply a matter that you may wish to consider. Because, I have to tell you as a matter of law, that the fact that a defendant tells a lie, is not of itself, evidence of guilt. A defendant may lie for many reasons. He may lie because he doesn’t want to disclose something or out of confusion, panic or something of that sort.
If you think that the defendant has lied in evidence, but you think that there is or might be some innocent explanation for any lie, then ignore it, take no notice of it at all. If, on the other hand, you were to find that the defendant did lie and you are sure that he didn’t lie for any innocent reason, then any such lie can be evidence going to support the prosecution’s case.”
The judge also noted that the applicant had not answered questions put to him during the police interviews. He reminded the jury of the reason given by the applicant for his silence. He also reminded them of some of the questions asked of the applicant during the police interviews and of the subsequent explanations relied upon by the applicant during his evidence at trial.
The judge concluded with the following direction:
“You must decide, whether in the circumstances, these facts to which I have referred, were facts which the defendant could reasonably have been expected to have mentioned in the light of that caution, which was repeatedly given to him, over that period from March to June.
If you find that he could reasonably be expected to have mentioned those facts, then the law is, that you may draw such inferences as appear proper, from his failures to mention such matters when interviewed.
I reminded you of the period of the interviews. Failures to mention such matters cannot on their own prove guilt, but you may hold such failures against the defendant when deciding whether he is guilty, that is to say, you may take them into account as some additional support for the prosecution’s case. You are not bound to do so, it’s a matter entirely for you to decide whether it is fair to do so.”
On 18 June 1998 the jury found the applicant guilty of the offences charged. He was sentenced to 26 years’ imprisonment, subsequently reduced to 22 years by the Court of Appeal.
b. First appeal to the Court of Appeal
The applicant appealed to the Court of Appeal arguing, inter alia, that the summing up contained a Lucas direction (a direction to the jury in relation to lies – see further below) where it was wholly inappropriate; and that the trial judge had not given appropriate directions to the jury regarding the drawing of adverse inferences from the applicant’s silence during the police interviews.
On 21 June 1999, the Court of Appeal handed down its judgment. It agreed that there had been no need for a Lucas direction. However, it considered that the fact that one was given did not prejudice the applicant’s defence or the safety of his conviction. Regarding the adverse inferences direction, the court considered that the judge had given adequate direction to the jury on this matter. It considered the applicant’s case in the round and noted that the evidence against the applicant was overwhelming. The applicant’s appeal was dismissed.
c. Second appeal to the Court of Appeal
On 20 July 2005, the Criminal Cases Review Commission referred the applicant’s conviction to the Court of Appeal on the basis of the trial judge’s direction to the jury in relation to the applicant’s silence at the police interviews. The main ground of appeal was that the direction was defective in that the jury were not directed that an adverse inference could only be drawn where it was satisfied that the real reason for the applicant’s silence was that he had no answer to the questions asked, or no answer that would hold up to scrutiny.
On the morning of the appeal hearing, counsel for the prosecution informed counsel for the applicant that he considered there to be no justification for opposing the appeal and that the only issue would be whether or not there ought to be a retrial.
The Court of Appeal disagreed and found that, despite the misdirection by the trial judge, the conviction was safe. It distinguished between cases where an accused exercises his right to silence pursuant to legal advice or because he is tired or ill and those where, as in the present case, the reason for not answering questions is linked to the accused’s defence itself. It found that the jury had rejected the applicant’s defence and, in doing so, must also have rejected the applicant’s explanation of why he failed to answer questions in the police interview, noting (at paragraph 13):
“Here the appellant’s explanation was inextricably linked to his defence which was: ‘I was involved with others in buying and selling stolen cars, but not in armed robbery’. In saying that he did not answer questions because he did not wish to implicate others in this business, the appellant was necessarily advancing his own defence. The jury rejected this defence and it seems to us that in doing so they must also have rejected the appellant’s explanation for his failure to mention facts at interview.”
The court also noted that the judge had given the jury an unnecessary Lucas direction which, in the event, provided assistance to the jury in how to approach the question of adverse inferences which could be drawn from the applicant’s failure to provide an explanation of his conduct during the police interviews. It concluded that:
“The direction the judge gave could only have related to lies told by the appellant in court. The jury were told that if they thought there was an innocent explanation for any such lie told by the appellant they should not hold it against him. So, as the jury must have concluded that the appellant’s explanation for his silence (‘I wanted to protect others’) was a lie, following the judge’s direction they would have had to consider whether there was an innocent explanation for it before they could have used it as supportive of the Crown’s case. If therefore they did use his lying explanation against him, the jury must have concluded that the lie was not innocent – in other words the reason he was lying about why he had not answered the questions was because he had no answer to them or none which would withstand scrutiny.
...So on analysis if the jury in this case did draw adverse inferences against the appellant from his silence at interview, they could only have done so by following the same thought processes as they would have had to follow if the proper section 34 direction had been given.”
The court referred to the earlier judgment of the Court of Appeal, which found the evidence against the applicant to be overwhelming, and concluded:
“This was not therefore a case in which one could say that the correct direction would have tipped the balance”.
The appeal against conviction was dismissed on 7 June 2006.
Relevant domestic law and practice
1. Section 34 of the Criminal Justice and Public Order Act 1994
Section 34 of the Criminal Justice and Public Order Act 1994 provides that:
“(1) Where in any proceedings against a person for an offence, evidence is given that the accused–
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings;
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
(2) Where this subsection applies
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
Section 38(3) provides that:
“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...”
A number of domestic cases have considered the application of section 34 in practice. In R. v Cowan ( 1 Criminal Appeal Reports 1), Lord Taylor CJ set out five “essentials” when making a direction on adverse inferences:
“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:
1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.
3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”
Subsequently, in R. v. Argent ( Criminal Appeal Reports 27), Lord Bingham CJ added a sixth condition that had to be met before section 34 of the 1994 Act would allow inferences to be drawn:
“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ...
Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.”
Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board, which provides specimen directions. The present specimen direction on section 34 is based on the five ‘essentials’ listed in R. v Cowan, as applied in subsequent section 34 cases before the domestic courts, including R v. Argent, and by this Court in John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996 I and Condron v. the United Kingdom, no. 35718/97, ECHR 2000 V).
The Judicial Studies Board specimen direction, which was last amended in December 2004, prior to the applicant’s second appeal, provides as follows (the sections in bold indicate substantive differences from the version of the guidelines in force at the time of the applicant’s trial):
“1. Before his interview(s) the defendant was cautioned ... He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he did say might be given in evidence.
2. As part of his defence, the defendant has relied upon (here specify the facts to which this direction applies - see Note 10). But [the prosecution say][he admits] that he failed to mention these facts when he was interviewed about the offence(s). [If you are sure that is so, this/This] failure may count against him. This is because you may draw the conclusion ... from his failure that he [had no answer then/had no answer that he then believed would stand up to scrutiny/has since invented his account/has since tailored his account to fit the prosecution’s case/(here refer to any other reasonable inferences contended for ... )]. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it ...; but you may take it into account as some additional support for the prosecution’s case ... and when deciding whether his [evidence/case] about these facts is true.
3. However, you may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things: first, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ... ; third, that apart from his failure to mention those facts, the prosecution’s case against him is so strong that it clearly calls for an answer by him ...
4. (Add, if appropriate:) The defence invite you not to draw any conclusion from the defendant’s silence, on the basis of the following evidence (here set out the evidence ... ). If you [accept this evidence and] think this amounts to a reason why you should not draw any conclusion from his silence, do not do so. Otherwise, subject to what I have said, you may do so.”
2. Lucas directions
A Lucas direction is a direction from the judge to the jury to the effect that the fact that the accused has told lies, or is alleged to have told lies, does not in itself indicate guilt. The jury should be invited to consider other explanations why the accused might have lied, including any he provides during the trial. The relevant case is R v. Lucas ( Q.B. 720), in which it was held that:
“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.”
The applicant complains under Article 6 § 1 of the Convention that he did not have a fair trial as a result of the trial judge’s misdirection to the jury on the making of adverse inferences as regards his silence during the police interviews, in particular by the omission of a direction to the effect that adverse inferences could only be drawn where the jury was satisfied that the real reason for the applicant’s silence was that he had no answer to the questions asked, or no answer that would hold up to scrutiny.
QUESTIONS TO THE PARTIES
2. In particular, in the absence of a direction that the jury could only draw an adverse inference if satisfied that the applicant’s silence at the police interview could only sensibly have been attributed to his having no answer or none that would stand up to cross-examination, was the applicant’s trial as a whole fair within the meaning of Article 6 § 1 (see Condron, cited above, § 61)?