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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> COWAN & Anor, R. v [1995] EWCA Crim 8 (12 October 1995)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1995/8.html
Cite as: [1995] 4 All ER 939, (1995) 3 WLR 818, (1996) 1 Cr App R 1, [1995] EWCA Crim 8, (1995) 4 All ER 939, (1996) Crim LR 409, [1995] 3 WLR 818, (1996) QB 373, [1996] QB 373
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Case No. 95/2901/W4
95/3790/X3 & 95/4054/X3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Date: Thursday 12 October 1995
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND
(Lord Taylor of Gosforth)
MR JUSTICE TURNER
and
MR JUSTICE LATHAM
__________________
R E G I N A
- v -
DONALD COWAN
RICKY GAYLE
CARMINE RICCIARDI
__________________
Computer Aided Transcription by
John Larking, Chancery House, Chancery Lane, London WC2
Telephone 0171-404 7464
(Official Shorthand Writers to the Court)
__________________
MR MICHAEL MANSFIELD QC and MR M MAGARIAN appeared on behalf of
THE APPELLANT COWAN
MR MICHAEL MANSFIELD QC and MR C BAUR appeared on behalf of
THE APPELLANT GAYLE
MR B HURST appeared on behalf of THE APPELLANT RICCIARDI
MR D JEFFREYS QC, MISS S FARR, MR BYRNE AND MR A RADCLIFFE appeared
on behalf of THE CROWN
____________________
J U D G M E N T
(As Approved by the Court)
____________________
Thursday 12 October 1995
THE LORD CHIEF JUSTICE: These three appeals raise important
questions as to the proper interpretation and implementation of
Section 35 of the Criminal Justice and Public Order Act 1994. The
Section, which came into force on 10 April 1995, provides as
follows:
"(1) At the trial of any person who has attained
the age of fourteen years for an offence,
subsections (2) and (3) below apply unless --
(a) the accused's guilt is not in
issue; or
(b) it appears to the court that the
physical or mental condition of
the accused makes it undesirable
for him to give evidence;
but subsection (2) below does not apply if, at
the conclusion of the evidence for the
prosecution, his legal representative informs
the court that the accused will give evidence
or, where he is unrepresented, the court
ascertains from him that he will give evidence.
(2) Where this subsection applies, the court
shall, at the conclusion of the evidence for the
prosecution, satisfy itself (in the case of
proceedings on indictment, in the presence of
the jury) that the accused is aware that the
stage has been reached at which evidence can be
given for the defence and that he can, if he
wishes, give evidence and that, if he chooses
not to give evidence, or having been sworn,
without good cause refuses to answer any
question, it will be permissible for the court
or jury to draw such inferences as appear proper
from his failure to give evidence or his refusal
without good cause to answer any question.
2
(3) Where this subsection applies, the court or
jury, in determining whether the accused is
guilty of the offence charged, may draw such
inferences as appear proper from the failure of
the accused to give evidence or his refusal,
without good cause, to answer any question.
(4) This section does not render the accused
compellable to give evidence on his own behalf,
and he shall accordingly not be guilty of
contempt of court by reason of a failure to do
so.
(5) For the purposes of this section a person
who, having been sworn, refuses to answer any
question shall be taken to do so without good
cause unless --
(a) he is entitled to refuse to
answer the question by virtue of
any enactment, whenever passed or
made, or on the ground of
privilege; or
(b) the court in the exercise of its
general discretion excuses him
from answering it.
(6) Where the age of any person is material for
the purposes of subsection (1) above, his age
shall for those purposes be taken to be that
which appears to the court to be his age.
(7) This section applies --
(a) in relation to proceedings on
indictment for an offence, only
if the person charged with the
offence is arraigned on or after
the commencement of this section;
(b) in relation to proceedings in a
magistrates' court, only if the
time when the court begins to
receive evidence in the
proceedings falls after the
commencement of this section."
-3-
It is clear that the section alters and was intended by
Parliament to alter the law and practice applicable when a defendant
in a criminal trial does not give evidence. The issues raised are -
-
(1) whether the discretion to draw inferences from
silence under section 35(3) should be open in the
generality of cases or only exceptionally and
(2) if it is to apply in a jury trial, what directions
should the judge give?
For all the appellants, it is argued that section 35 either
breaches or verges on breaching long established principles.
Although, therefore, it is conceded that some effect must be given
to the enactment, it should be applied only very exceptionally and
not in the general run of cases. Mr Mansfield QC, supported by Mr
Hurst, submits that the section constitutes an infringement of the
defendant's right of silence. By permitting a court or jury to draw
an adverse inference should the defendant remain silent at trial, it
is submitted that his free choice is inhibited.
It should be made clear that the right of silence remains.
It is not abolished by the section; on the contrary, subsection (4)
expressly preserves it. As to inhibitions affecting a defendant's
decision to testify or not, some existed before the 1994 Act. On
the one hand, a defendant whose case involved an attack on the
character of a prosecution witness could well be inhibited from
giving evidence by fear of cross-examination as to his own record.
On the other hand, in certain cases, judges were entitled to comment
-4-
on the defendant's failure to testify (Martinez-Tobon, 98 Cr App R
375). Arguably, this put pressure on a defendant to give evidence.
Even in a case calling only for the classic Bathurst direction (52
Cr App R 251), a defendant might be inhibited from remaining silent
for fear the jury would hold it against him that he chose to leave
the prosecution evidence uncontradicted.
It is further argued that the section alters the burden of
proof or "waters it down" to use Mr Mansfield's phrase. The
requirement that the defendant give evidence on pain of an adverse
inference being drawn is said to put a burden on him to testify if
he wishes to avoid conviction.
In our view that argument is misconceived. First, the
prosecution have to establish a prima facie case before any question
of the defendant testifying is raised. Secondly, section 38(3) of
the Act is in the following terms:
"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 35(3)...."
Thus the court or jury is prohibited from convicting solely because
of an inference drawn from the defendant's silence. Thirdly, the
burden of proving guilt to the required standard remains on the
prosecution throughout. The effect of section 35 is that the court
or jury may regard the inference from failure to testify as, in
effect, a further evidential factor in support of the prosecution
case. It cannot be the only factor to justify a conviction and the
-5-
totality of the evidence must prove guilt beyond reasonable doubt.
We therefore reject the two premises relied upon by
Mr Mansfield to support his submission that section 35 should only
be invoked in exceptional cases. In any event, whatever the
jurisprudential merits of the two premises, the plain words of the
section simply do not justify confining its operation to exceptional
cases. Section 35(1) deals with exceptional situations in which
subsections (2) and (3) are not to be invoked. Otherwise, the
section is in terms of general application. Indeed, subsection (2)
is in mandatory terms. In cases other than those in subsection (1)
"the court shall satisfy itself etc."
It is true that the operative subsection (3) as to the
finding of the court or verdict of the jury is in permissive rather
than mandatory terms. Accordingly, the judge has a discretion as to
whether and in what terms he should advise a jury for or against
drawing inferences. In what circumstances, then, should the court
or jury be prepared to draw an adverse inference? Mr Mansfield's
answer is: "only exceptionally where there is no reasonable
possibility of an innocent explanation for the defendant's silence."
He suggested a number of possible reasons for silence at trial
which may be consistent with innocence. They were:
(1) a weak case barely surviving a submission of no case;
(2) other defence evidence contradicting prosecution
evidence;
(3) if the defendant is nervous, inarticulate or unlikely
to perform well;
-6-
(4) if the defendant's medical condition is abnormal
although not within section 35(1);
(5) fear, duress or the protection of others;
(6) previous convictions of the defendant where he is
liable to be cross-examined on them;
(7) a "mixed situation" -- i.e. where the 1994 Act was
not in force at the time of the defendant's arrest or
interviews but was in force at the time of the trial.
If any of these reasons or excuses exist or may do so, it is
submitted the court should not draw, or the jury should be directed
not to draw, an adverse inference. Moreover, Mr Mansfield suggests
such reasons or excuses could properly be advanced by defending
counsel without the need for evidence.
The breadth of these propositions is patently inconsistent
with the scheme and plain words of section 35. To use the
inevitable cliché, they would drive a coach and horses through the
statutory provisions. Mr Mansfield's approach frankly was that
section 35 is so at variance with established principle, that its
operation should be reduced and marginalised as far as possible. We
cannot agree.
In particular, we should deal specifically with two of the
suggested" good reasons". First, the general proposition that a
previous criminal record upon which a defendant could be cross-
examined (if he has attacked prosecution witnesses) is a good reason
for directing a jury that they should not hold his silence against
him, would lead to a bizarre result. A defendant with convictions
-7-
would be in a more privileged position than one with a clean record.
The former could avoid submitting himself to cross-examination with
impunity; the latter could not. We reject that proposition.
Secondly, in what he calls "a mixed situation", Mr
Mansfield argues that where the 1994 Act was not in force at the
time of arrest or interview, the defendant may have remained silent
then, without realising that his silence later at trial could be
held against him. Had he realised that, he might have given his
story in interview and left his counsel at trial to submit he had
already given his account and could not add to it. However, apart
from the unreality of such a scenario, subsection (7)(a) clearly
contemplates that proper inferences from silence at trial can be
drawn in just such a situation.
We accept that apart from the mandatory exceptions in
section 35(1), it will be open to a court to decline to draw an
adverse inference from silence at trial and for a judge to direct or
advise a jury against drawing such inference if the circumstances of
the case justify such a course. But in our view there would need
either to be some evidential basis for doing so or some exceptional
factors in the case making that a fair course to take. It must be
stressed that the inferences permitted by the section are only such
"as appear proper". The use of that phrase was no doubt intended to
leave a broad discretion to a trial judge to decide in all the
circumstances whether any proper inference is capable of being drawn
by the jury. If not he should tell them so; otherwise it is for the
jury to decide whether in fact an inference should properly be
drawn.
-8-
By way of guidance, a specimen direction has been suggested
by the Judicial Studies Board in the following terms:
"The defendant has not given evidence. That is
his right. But, as he has been told, the law is
that you may draw such inferences as appear
proper from his failure to do so. Failure to
give evidence on its own cannot prove guilt but
depending on the circumstances, you may hold his
failure against him when deciding whether he is
guilty.
[There is evidence before you on the basis of
which the defendant's advocate invites you not
to hold it against the defendant that he has not
given evidence before you namely....
If you think that because of this evidence you
should not hold it against the defendant that he
has not given evidence, do not do so. But if
the evidence he relies on presents no adequate
explanation for his absence from the witness box
then you may hold his failure to give evidence
against him. You do not have to do so]
What proper inferences can you draw from the
defendant's decision not to give evidence before
you? If you conclude that there is a case for
him to answer, you may think that the defendant
would have gone into the witness box to give you
an explanation for or an answer to the case
against him. If the only sensible explanation
for his decision not to give evidence is that he
has no answer to the case against him, or none
that could have stood up to cross-examination,
then it would be open to you to hold against him
his failure to give evidence. It is for you to
decide whether it is fair to do so".
(The words in brackets are to be used only where
there is evidence).
We consider that the specimen direction is in general terms
a sound guide. It may be necessary to adapt or add to it in the
particular circumstances of an individual case. But there are
-9-
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
required standard 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. The right of silence
remains.
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.
-10-
(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.
It is not possible to anticipate all the circumstances in
which a judge might think it right to direct or advise a jury
against drawing an adverse inference. Nor would it be wise even to
give examples as each case must turn on its own facts. As Kelly LJ
said in McLernon 1990, 10 N.I.J.B. 91 (a Northern Ireland case
concerning provisions of Article 4 of the Criminal Evidence
(Northern Ireland) Order 1988, which are in terms similar to but
stronger than those of section 35), at page 102:
".... the court has then a complete discretion
as to whether inferences should be drawn or not.
In these circumstances it is a matter for the
court in any criminal case (1) to decide whether
to draw inferences or not; and (2) if it decides
to draw inferences what their nature, extent and
degree of adversity, if any, may be.
It would be improper and indeed quite unwise for
any court to set out the bounds of either steps
(1) or (2). Their application will depend on
factors peculiar to the individual case".
Kelly LJ was considering a trial without a jury, but we regard his
remarks as applicable equally to the directions or advice a judge
needs to give in his summing up to a jury.
-11-
We were referred to the opinion of the Commission of Human
Rights in John Murray v UK 18 EHRR, CD.1. There, similar arguments
to those advanced here were considered in relation to a 'judge
alone' trial from Northern Ireland said to involve breaches of
Article 6 of the European Convention on Human Rights. We stress
that decisions of the Commission and indeed those of the European
Court of Human Rights itself are not binding upon this court. They
are of assistance to resolve any ambiguity in our domestic law, but
here we find no ambiguity in section 35. Nevertheless, the
Commission's observations at page 9 are of interest. Dealing with
Article 4 of the 1988 Northern Ireland Order, the Commission said:
"Inferences from a failure to give explanations
or evidence in court only become permissible
under the Order when there is a prima facie
case, i.e. the prosecution has submitted
material which might lead to the conviction of
the accused. It is apparent that, if the
prosecution fails to make such a case to the
court's satisfaction, the question of inferences
will never arise. Moreover, the Commission is
satisfied that the burden of proof remains on
the prosecution throughout to prove an accused's
guilt beyond a reasonable doubt. However, where
a prima facie case has been presented to the
court, certain conclusions may always be drawn
from the failure of the accused to rebut in
defence the evidence against him.
Further, the Commission notes that a judge is
not required to draw inferences and may only
draw such inferences, and such degree of
inferences, as may be proper".
In a partially dissenting opinion, Mr Nicholas Bratza
sought to distinguish 'judge alone' cases where the judge's reasons
for drawing inferences could be reviewed from jury cases where they
-12-
could not. However, juries in criminal trials are required to draw
inferences in numerous situations and provided that the judge gives
them proper directions, we see no reason why the passage quoted from
the Commission's opinion above should not apply equally to jury
trials.
We wish to stress, moreover, that this court will not
lightly interfere with a judge's exercise of discretion to direct or
advise the jury as to the drawing of inferences from silence and as
to the nature, extent and degree of such inferences. He is in the
best position to have the feel of the case and so long as he gives
the jury adequate directions of law as indicated above and leaves
the decision to them, this court will be slow to substitute its view
for his.
We should also refer to one ground of appeal which was not
developed in argument by Mr Mansfield. It complained that paragraph
3 of the Practice Direction (Crown Court: Defendants' Evidence)
[1995] 1 WLR 657, which prescribed the words to be used by a judge
on being informed that the accused does not intend to give evidence,
breached professional privilege. The form of words is as follows:
"Have you advised your client that the stage is
now being reached at which he may give evidence
and, if he chooses not to do so or, having been
sworn, without good cause refuses to answer any
question, the jury may draw such inferences as
appear proper from his failure to do so?"
The contention was that to ask counsel what he has advised his
client breaches professional privilege. In our view there is no
-13-
merit in this contention. Section 35(2), as already observed,
places a mandatory requirement on the court to satisfy itself (in
the case of proceedings on indictment, in the presence of the jury)
of the matters set out there. The only way the court can do that is
to ask either the defendant or his counsel. To by-pass counsel and
address the defendant directly in the presence of the jury would, we
apprehend, give the appearance of greater pressure on the defendant
and a more inquisitorial role for the judge than simply to enquire
of counsel whether the statutory position has been explained to his
client. The subject-matter of the enquiry does not concern anything
confidential.
We also reject Mr Mansfield's submission that the form of
words in paragraph 3 of the Practice Direction could be replaced by
a simple enquiry of the defendant's advocate as to whether the
defendant has been made aware of the provisions of section 35. The
object of that would be to avoid the jury's hearing what the
possible consequence of not giving evidence may be. However,
section 35(2) clearly contemplates that the jury should hear the
terms of the section at that stage of the trial.
Finally, we wish to make it clear that the rule against
advocates giving evidence dressed up as a submission applies in this
context. It cannot be proper for a defence advocate to give to the
jury reasons for his client's silence at trial in the absence of
evidence to support such reasons.
We now proceed to apply the principle set out above to the
three instant appeals.
-14-
R v COWAN:
This appellant was convicted on 21 April 1995 at Kingston-
on- Thames Crown Court of unlawful wounding. He was acquitted on
the alternative count of wounding with intent. On 5 May 1995 he was
convicted of assault occasioning actual bodily harm and was
sentenced to 30 months imprisonment for the unlawful wounding and 18
months consecutive for the assault occasioning actual bodily harm,
making four years in all.
On the wounding charge, the case for the Crown was that the
appellant assaulted one Taylor outside a public house after a fracas
inside the premises. Two witnesses identified the appellant as the
assailant. The defence was that the appellant was not the
assailant, but another member of the group he was in was guilty of
the wounding. The appellant did not give evidence but two witnesses
were called on his behalf to substantiate his case. In the course
of cross-examining the victim Taylor, the appellant's counsel not
only put in the alternative that Taylor was mistaken or had
deliberately sought to frame the appellant but also put to Taylor
his previous convictions.
The judge was urged not to direct the jury as to their
right to draw inferences from the appellant's silence because that
silence was necessary to prevent his previous record being put to
him. The judge rejected that submission. In our view he was right
to do so.
However, there are criticisms of the trial judge's
directions to the jury which preceded the issue by the Judicial
Studies Board of the specimen direction. Mr Mansfield alleged
-15-
there were three defects. First he claimed that the judge blurred
the burden of proof by his directions to the jury as to the drawing
of inferences from silence. This complaint in our view is
unfounded. The judge gave the normal direction on burden and
standard of proof. Nothing he said about drawing inferences from
silence in our view qualified that direction.
However, we do consider that there is merit in the other
two complaints. The judge failed to tell the jury that they could
not infer guilt solely from silence. Secondly, he did not warn the
jury that the condition for holding a defendant's silence at trial
against him was that the only sensible explanation for that silence
was that he had no answer to the case against him or none that could
have stood up to cross-examination. This was a case involving a
clear conflict of evidence. Strong feelings had been aroused not
only by the incident outside the public house but by the earlier
fracas within it. We consider that without the omitted directions
the jury may have attached undue importance or weight to the
appellant's absence from the witness box. Accordingly, we are not
sure that the verdict can be regarded as safe and satisfactory and
the appeal must be allowed. We should add that we have sympathy
with the judges in both the present case and the case of R v Gayle
who had to cope with the new provisions shortly after their
introduction and without guidance.
R v GAYLE:
On 18 May 1995, at the Central Criminal Court, this
appellant was convicted of doing an act tending and intended to
-16-
pervert the course of public justice. He was sentenced to 9 months
imprisonment. It was the prosecution case that on 2 February 1995
the appellant went to a public house in Harrow from which he had
previously been barred. He threatened to assault the landlord if
the latter gave evidence against him on a charge of criminal damage
for smashing a window at a hairdresser's shop opposite the public
house on 25 January. The publican gave evidence that the appellant
made threats as to what would happen to him if he gave evidence.
The threats culminated in the expression: "Drop the case or you are
dead". The appellant did not give evidence, nor did he call any on
his own behalf.
Complaint is made, first, that section 35 ought not to have
been invoked by the judge at all or, putting it another way, the
judge ought to have directed the jury not to draw any adverse
inference from the appellant's silence. The reason put forward for
this is that the appellant had previous convictions which inhibited
him from giving evidence. We have already indicated that we reject
this proposition.
However, there are a number of criticisms of the judge's
summing up. He did not say to the jury in terms that the defendant
had the right to remain silent, that it was his choice. That was
compounded by a passage at page 3E to 4A of the summing up in which
the judge seemed to imply that the right of silence had gone. He
said:
"Mr Baur addressed you at some length as to the
fact that the law has recently changed in this
regard and indeed changed, or the change in the
law came into effect, after the defendant had
-17-
been arrested on this charge where, at that time
it was the position that every defendant was
entitled, if they wished not to answer any
questions to the police, no comments, say
nothing if they wished to do so. That could not
be taken in any way against them. It was their
right to silence. As you have been told and
you, no doubt, may have read it at the time,
that law was very recently changed and the
caution, indeed, now is quite different".
It is true that after that the judge directed the jury only along
the lines of the Bathurst direction, but he had earlier, at page 3,
told the jury of their right to draw inferences in the following
terms:
"The defendant himself has not gone into the
witness box to give evidence. He would
obviously be questioned and cross-examined as to
the details of what occurred. That in itself is
not to be taken by you as proof of guilt. But
as you have been told the position is now that
where that is the situation then it is a matter
for you to draw such inference as you consider
you can safely draw from the fact of his not
giving evidence. There is no more, it does no
more than that".
There was no direction that the jury should consider
drawing an adverse inference only if they consider there was a case
to answer. Nor was there any direction that no adverse inference
should be drawn unless the only sensible explanation for the
defendant's silence was that he had no answer or none that could
stand up to cross-examination. In view of these shortcomings, we
consider the summing up was defective and the appeal must be
allowed.
-18-
R v Carmine RICCIARDI:
On 15 June 1995, at Wood Green Crown Court, this appellant
was convicted of attempted theft. On 16 June he was sentenced to 12
months imprisonment. He appeals against conviction by leave of the
single judge who also referred his application for leave to appeal
against sentence to the full court.
Two Royal Bank of Scotland cheques and their counterfoils
were stolen from a company cheque book in an office in November
1994. One was made out in favour of the appellant for £59,625. The
signatures of the Company signatories were forged. The cheque was
paid in at Hatton Garden Lloyds Bank Branch by someone using a pay-
in slip from the appellant's pay-in book. On the same day, the
appellant visited his own branch of Lloyds Bank in Hertford and said
the cheque was being paid in to his personal account. He said he
wished to have the money in cash as he was going to pay off an
overdraft at another bank and did not want that bank to know where
the money came from. The Hertford branch found that the cheque was
stolen and the appellant was told this. The appellant gave a story
to the police which he transmitted by fax. In it he said he had no
knowledge whatsoever of where the cheque originated and the first
time he had seen it and discovered who was the drawer was when he
was given a copy by the police. He was arrested and shown the
original cheque in a plastic folder but was not given the
opportunity to handle it or left alone with it. His fingerprints
were found on the cheque.
The appellant did not give evidence. He was a man of
-19-
previous good character and he called a character witness.
In this case the trial judge followed the Judicial Studies
Board Specimen Direction in summing up to the jury. He is
criticised by Mr Hurst on two grounds. Principally, it is submitted
that the judge should have told the jury there were many possible
reasons for a defendant not giving evidence which could be
consistent with innocence. No evidence or material of any kind was
led or put before the judge to explain the defendant's silence. Mr
Hurst tells us there was a reason but it was so sensitive that it
could not be divulged even to the judge in camera or in writing. It
was not divulged to this court.
It is obvious that that kind of enigmatic assertion cannot
amount to a good reason for a judge to direct or advise a jury not
to draw an adverse inference from a defendant's silence. If it
could amount to good reason then section 35 could be circumvented at
the defendant's will. Nor do we think it incumbent on a judge or
appropriate for him to embark or invite the jury to embark on
possible speculative reasons consistent with innocence which might
theoretically prompt a defendant to remain silent. Accordingly,
that ground of appeal fails.
The other ground is, if possible, even more tenuous. The
learned Recorder told counsel how he would direct the jury pursuant
to section 35. He did what he promised. The complaint is however
that he "went further than he said he would" because towards the end
of the summing up, in summarising the points for the prosecution
(after which he summarised those for the defence) he said:
-20-
"There is no evidence from the defendant as to
when he did touch the cheque".
The Recorder then referred to a number of other points in
the case which were unexplained. We can see nothing wrong in what
he did. In directing the jury on the law he followed the course he
had agreed with counsel. He was perfectly entitled in reviewing the
facts and arguments to summarise the points made by each side. This
appeal against conviction must therefore be dismissed.
(Mr Hurst addressed the court in relation to Ricciardi's sentence)
THE LORD CHIEF JUSTICE: We now deal with the application for leave
to appeal against sentence in the case of Ricciardi. We grant
leave.
It is submitted to us by Mr Hurst that the sentence of 12
months imprisonment imposed by the Recorder was unduly harsh.
Primarily Mr Hurst submits that there ought not to have been a
prison sentence, but if that argument fails he argues for a lesser
sentence than that imposed. The matters he particularly urges are
that the appellant is aged 37, with no previous convictions --
indeed, a positively good previous record. There are references as
to his good character and as to his charitable work.
It is suggested that the offence which was committed was
-21-
one which was bound to have been discovered. The discovery of what
he was intending to do resulted in the offence being one of attempt
rather than the full offence of theft.
Nevertheless, we take the view that this was a serious
matter. An elaborate story was conjured up by the appellant to seek
to escape detention for what was a blatant fraud involving some
£60,000 and the forgery of a cheque. The amount of money involved
puts this case in a different league from first offences of minor
thefts or attempted thefts. It is said that the appellant was in
financial difficulties at the time. But the true position seems to
be that he was a man of substance. The only difficulty he had was
that his assets were not readily realisable.
It cannot be emphasised too strongly that someone who is
minded to commit an offence of this kind simply to escape from some
temporary financial embarrassment must expect a prison sentence. In
our view the Recorder was correct to impose one. However, bearing
in mind that this was a first offence, a single lapse and the good
character which has been urged on his behalf, we consider that 12
months imprisonment was excessive. We propose, therefore, to quash
that sentence and to substitute a sentence of eight months
imprisonment, the effect of which we expect will be that he can now
be released.
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