England and Wales Court of Appeal (Criminal Division) Decisions

97/97/6344/W2

Royal Courts of Justice

Strand

London WC2A 2LL

Tuesday 7th April 1998

B e f o r e:

LORD JUSTICE BUXTON

MR JUSTICE ROUGIER

and

THE COMMON SERJEANT OF LONDON

(Acting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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ROBERT READER

NEIL STEPHEN CONNOR

PAUL HART

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD Tel: 0171 831 3183

(Official Shorthand Writers to the Court)

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MR J ORME appeared on behalf of the Appellants

MR I ASCHERSON appeared on behalf of the Crown

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J U D G M E N T

(As approved by the Court)

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LORD JUSTICE BUXTON:

Reader, Connor and Hart were convicted on 27 August 1997 on a joint indictment of going equipped for theft under section 25 of the Theft Act 1968. They had been observed for a period of nearly two hours in the car parks at Brands Hatch motor racing circuit in an Escort car driven by Connor, which cruised slowly round the parks, stopping occasionally while Reader and Hart got out and looked into various of the parked cars. When it left the parks the car was stopped and searched. A slide hammer, screwdrivers, pliers a torch and gloves were found, mainly in the back seat footwell. Hart was seated in the back seat, Reader in the front passenger seat. Connor admitted that the tools were his. The Crown's case was that they had intended to steal from cars in the car-park should a suitable opportunity present itself, using some of the tools to break in.

Reader gave a no comment interview, and at the trial did not give evidence but, as we shall demonstrate more fully later in this judgment, simply put the Crown to proof. Connor equally gave a no comment interview, but gave evidence at the trial, to the effect that he had gone to Brands Hatch to watch the racing, on the understanding that they would be met there by Reader's brother, Jason Reader. Jason was going to pay Reader's admission fee, and most of the time in the car park was spent looking for Jason or his car. When they got out of the car it was to search more thoroughly. At a later stage Connor's car overheated, causing them to stay longer in the car park. Hart gave evidence to the same effect. He had given an interview to the police, in which, when asked why he did not attend the racing, failed to say that they were waiting for and looking for Jason. Jason Reader was called to give evidence, by Connor. He said that he had an arrangement to meet his brother, had waited at the main gate for him and then gone into the racing. He went in and out of the racing, looking for his brother, until it ended.

Numerous complaints were made in the Grounds of Appeal and before us as to the conduct of the trial and the terms of the summing up, most of which we can deal with shortly.

The judge rejected a submission of no case at the end of the prosecution case. He was amply justified in so doing. The Crown's evidence certainly established on a prima facie basis the Crown's case as outlined above. It is futile for counsel to argue that that evidence was capable of an innocent explanation by the defendants. It was also well capable of supporting the prosecution case, and as such called for an explanation from the defendants.

Further complaints were, first, that the judge, having given a proper direction as to the standard of proof and the burden being on the prosecution, did not go on and add that the defence did not have to prove anything. Although that is often said, it is not obligatory, because it follows of necessity from the direction that the judge has already given. Second, the judge directed the jury in terms of joint enterprise, based on a tacit agreement between the defendants, but did not continue to indicate what the effect would be if no such agreement was established. But in taking that approach the judge was wholly favourable to the defendants. The case was squarely put by the prosecution, and the jury were told by the judge that it was the case that the prosecution had set itself to prove, that all of the three men were guilty as joint enterprisers. It was a necessary corollary that if that case failed all of them would be acquitted: even Connor, who owned the tools. Third, complaint was made of how the judge dealt with the point, as he said repeatedly made by the defence, and perhaps surprisingly ventilated also before us, that no car was entered and nothing stolen. The judge said:

"It may be important to consider the purpose of this particular section in the Theft Act, namely section 25. It was, as I conceive it, intended by Parliament as a measure to assist in the protection of property, things and premises by discouraging would-be thieves and burglars from carrying in public instruments which could be used for theft or burglary. If a car had been entered and items taken or a vehicle itself taken, then a different section of the same Act would have been applicable to such a situation, namely, a charge of theft or attempted theft. So far as section 25 is concerned, no theft or burglary has to be proved in order to establish the charge. It is simply the elements to which I have already referred."

The appellants said that that explanation might lead the jury to think that no actual intention to steal on the part of the defendants had to be established. We cannot agree. It might have been better if the judge had simply told the jury that the prosecution had only to establish intent to steal, and that the mere fact that there had been no theft provided no defence, rather than going in to the supposed purpose of the legislation; but in the context of his summing-up as a whole he said nothing that misled the jury.

We turn to matters of greater moment. These are (i) the judge's directions as to the elements of the offence; (ii) the judge's omission to give a direction as to the effect of Hart's interview upon the cases of the other defendants; (iii) in the case of Reader only, the judge's direction to the jury under s 34 of the Criminal Justice and Public Order Act 1994 as to the effect of Reader's failure to answer questions in interview.

Because of the way in which the prosecution put the case, the judge had to deal with two matters: the requirements of section 25; and the way in which those requirements could be fulfilled by defendants acting, as these defendants were alleged to have acted, jointly. The judge initially dealt with those matters as follows, at the beginning of his summing-up:

"The charge here is going equipped for theft. What must be proved in order to establish this charge? First, that one, two or all three of these defendants had with them the named articles when not at home and not at their place of abode; in other words, when they were out and about. Secondly, they had them, one or more of them, for the purpose of, or with the intention of, using them in the course of, or in connection with, theft, the prosecution say, either of cars or from cars.

The intention or purpose for having those tools is important because of course many items, like the tools listed here, can be used for an innocent or for an illegal purpose....

Joint enterprise is where two or more persons agree upon a criminal course of conduct and each such person is responsible, not only for his own actions, but also for the action of another person or persons involved in the agreement, to the extent and for the purpose of putting the criminal plan into operation.

The prosecution say that is the case here. On that basis, they say each defendant played a part. The defendant Connor was the driver of the vehicle and the other two carried out prospective exercises in the car parks in order to see if anything took their fancy for the purpose of theft.

In such circumstances, it would not matter which of them actually owned the tools, any or all the tools, if they had with them jointly for the purpose or with the intention of using them or any one of them for effecting a theft. Should anything be located, all would be responsible and guilty."

Mr Orme, for the appellants, made some comparatively minor criticisms of this formulation, with which we did not agree. First, he said that the judge had not made plain that the intent to use the tools to steal must be an intent as to the future, a criticism that we did not understand. Secondly, he said that the judge had not made it sufficiently plain that the intent required must be an actual and not merely a conditional intent, citing in that respect Hargreaves [1985] Crim LR 243. The latter was however a case in which the accused claimed not to have decided whether to use the tools or not. He therefore could not have had them "for use". In the present case, however, it was entirely clear that the prosecution's case was that the three men were going to use the tools if an opportunity presented itself, and it was an intention in those terms that had to be established. Although such an intention might in one sense be called "conditional" it is an intention sufficient to fulfil the requirement of section 25 that the defendant has the article "for use in the course of ..theft", and the judge correctly so directed the jury.

Apart from those criticisms, Mr Orme said that he had no objection to the direction that we have just cited. We ourselves were not so confident that it was sufficient. The offence under section 25 is not committed simply by persons intending to commit, or prospecting the commission of, theft. It is narrowly confined to a person who additionally "has with him" articles for use in that theft. Where that offence is alleged to have been committed jointly, all its elements, including having the article with him, must be brought home to all of the defendants. It was not therefore enough for the jury to be told that the case was based on joint prospecting of opportunities for theft (which on the prosecution evidence had very arguably occurred): the prosecution had to go on to prove joint possession of the tools. As to that, the facts were that Connor owned the tools, which were in his car; Hart was sitting in the back seat, presumably with his feet on top of the tools that were in the back seat well; but Reader had been in the front seat, where there were no tools. For them all to have had the tools with them, all must be shown to know that the tools were in the car, and be party to an agreement to use them if the opportunity arose.

Against that background, we doubted whether it was enough for the judge simply to say to the jury that

"It would not matter which of them actually owned the tools, any or all of the tools, if they had them with them jointly for the purpose or with the intention of using them or any one of them for effecting a theft."

without making clear that for the men to have the tools with them jointly they must all know about the presence of the tools in the car. At the same time, we recognised that that requirement, although not stated in terms in the passage that we have just quoted, might be thought to follow necessarily from what the judge said; and we were reinforced in that view by the fact that the appellants' counsel had not considered that the judge's directions were wrong in this respect.

However that may be, any doubt on this matter was in our view put to rest by the further direction that the judge gave when the jury, after being in retirement for some considerable time, sent him a note asking, simply, for clarification of the requirements of section 25. The judge gave a fairly lengthy reply, which included the following passage:

"Where two or more persons agree together upon a criminal course of conduct, then each person is responsible not only for his own actions, but for the actions of anyone else who is a party to the agreement to the extent of, and for the purpose of, putting a criminal plan into operation.

That may well of course be relevant in the context of the phrase 'having with them' these various items in the car. The car belonged to Connor, but if they were all there with the common criminal purpose, then they would by our law be regarded, if they knew of the existence of those articles in the car and they were there for this purpose with the intention of using them for the purpose of theft, then they would be jointly regarded as in possession of these articles, the items mentioned --the slide-hammer, screwdrivers and so forth -- but they would all have them with them. In other words, in those circumstances, they do not have to show that a particular defendant had a particular item in his own hand."

That made entirely clear to the jury, if it was not clear already, that all of the defendants must know of the existence of the articles and have a common purpose to use those articles in theft. This was the last guidance that the jury heard before they reached their verdicts. It was correct in law, and rendered those verdicts, from this point of view, safe.

This point is to some extent related to the third objection, taken in the case of Reader only, so we set out the passage in the summing-up in which both matters were addressed:

"When interviewed the defendants Reader and Connor declined to answer any questions or to give any explanation at all for their presence in those car parks. The defendant Hart did answer all the questions which were put to him but did not then produce the explanation which he and Connor gave in court yesterday. You have a transcript provided to you of the record of Hart's interview. It is mainly all the questions and answers, but one or two points have been summarized. That was all read out to you yesterday and you have been supplied with your own copies. You can consult that to such an extent as you feel it may assist you when you retire to consider your verdicts.

The defendant Reader has never given any explanation because he did not give evidence. When cautioned the defendant was told if he failed to mention something which he later relied upon, an unfavorable conclusion may -- it does not have to be -- be drawn from his previous failure to mention it. That is a matter for the jury trying the case -- you in this case -- to consider and decide for yourselves, in other words, whether or not to take such a view in this particular case.

The prosecution suggest that the reason why the two defendants refused to answer questions -- that is, Reader and Connor -- and the reason why no defendant produced the explanation now advanced, is because they had not had a chance to put their heads together and to produce the same story by the time they were separately interviewed at the police station. That again is a matter for you to consider and evaluate for yourselves as a point. To give it weight or not is for you to decide."

The judge pointed out to the jury that when interviewed Hart had said nothing about looking for Jason Reader, which was the nub of his explanation of innocent behaviour. The record of the interview, which the jury retired with, made it plain that a clear occasion arose for Hart to explain about Jason Reader, when he was asked why, having gone to Brands Hatch, he had not attended the racing: to which he replied that he did not know why he had not gone to the racing. That discrepancy was, however, in itself evidence only against Hart. The judge did not make that clear; and indeed indicated that the jury could make such use of Hart's interview as they thought fit when considering their verdicts (in the plural).

This point occurred to no-one at the trial, and was not relied on by Reader or Connor in their grounds of appeal. It was only raised by the court in the course of the hearing. We continue to consider that, especially in the particular circumstances of this case, it would have been desirable for the judge to make clear the limited evidential status of anything said, or not said, in interview by Hart. Further, if the point had been raised with him the judge might have wished to reconsider whether he should have drawn the jury's attention so specifically to the interview, or permitted the jury to retire with its transcript. But looking at the case as a whole, we cannot think that this matter rendered the verdicts unsafe. As the judge made clear in summarising the nature of the prosecution case in the passage at the end of the part of his summing-up just cited, the criticism directed at all three men was that when they had their first opportunity to do so they gave no account of their reasons for being in the car-park. Because of the failure of Reader and Connor to take the opportunity to explain themselves when questioned by the police, it was that matter on which the jury would focus when considering their cases. We think that there was no danger of the separate criticism of Hart, in terms of his incomplete statement, adding to that enquiry in the cases of Reader and Connor in a way that would be unfair to them: and much less in a way that would render their convictions unsafe.

That approach to the matter however presupposes that there was otherwise nothing wrong in the way in which the judge directed the jury in respect of Reader and Connor. Connor made no complaint on that score, but Reader objected to the judge's specific observations already cited, commenting, purportedly under the powers given him by section 34 of the Criminal Justice and Public Order Act, on Reader's failure to answer questions in interview.

At the trial Mr Orme represented only Hart and Connor; other counsel represented Reader. On appeal, Mr Orme's complaint was that since Reader had not given evidence the pre-condition to comment by the judge on his failure to give answers in interviews had not been fulfilled, since in those circumstances Reader in interview could not have failed to mention any fact [subsequently] relied on in his defence. We have no hesitation in rejecting that argument. Plainly a defendant can rely on facts in his defence without he himself having given evidence of those facts. However, even though the appellant's ground of objection was misconceived, we still needed to consider, first, whether although not giving evidence Reader had indeed relied on facts in his defence which he had not mentioned in interview; and, second, if so, whether the judge had sufficiently identified to the jury the facts concerned, so that they were aware that the section only permits the drawing of inferences from the failure to mention those facts , rather than from a general failure to answer questions.

On the first point Mr Orme, although not able to tell us exactly how matters had proceeded at the trial, suggested that Reader's counsel had not relied on any of the evidence called for the defence, Jason Reader having been called by Connor and not by Reader himself, and had merely put the prosecution to proof. We entertained, and expressed, considerable scepticism at that suggestion. We thought that Reader would be hard pressed to show that he did not rely on his co-defendants' evidence of a search for Jason Reader, backed as it was by evidence from Reader's own brother; and that Reader's then counsel would have had to exercise considerable, and perhaps surprising, restraint in not relying on those matters when he addressed the jury. However, Miss Ascherson properly and fairly told us that we were mistaken in that respect. Her impression at the trial had indeed been that Reader's counsel had done no more than put the prosecution to proof, and had disclaimed reliance on any positive case and thus on any facts supporting such case.

He had not expressly disclaimed reliance on the other defendants' evidence: but we doubted whether it would be fair to require that further step before a defendant could be said not to have relied on that evidence.

Should such a circumstance arise in future cases its implications may need further investigation, a matter to which we revert below. However, in this case we are prepared to accept that Reader did not rely on facts at the trial, and therefore did not fall under section 34.

Further, we have to say that even if the judge had had vires to comment under section 34, his direction to the jury was inadequate. Save for a general reference to failure to mention "the explanation now advanced" he failed to identify the facts that had not been mentioned in interview. In our view, that needed to be done with more particularity, so that the jury could adjudicate on the implications, not of a mere failure to reply, but of a failure to mention particular facts: which, for instance, may vary amongst themselves as to the immediacy or detail in which they are known to the defendant at the time of interview.

That said, we do not think that this misdirection, as we believe it to have been, rendered Reader's conviction unsafe. The case against him was very strong. The passage complained of was a short one, unemphasised, and in our view adding little to the jury's assessment of Reader. Further, a far more obvious failure on the part of Reader to explain himself was to be found in his failure to give evidence at the trial. The judge gave the jury a direction about that also. Counsel before us objected to that direction because he said it was inappropriate to give such a direction at all where the prosecution case depended on inference. That objection is misconceived; and the direction having been given, no objection was or could be taken to its terms. The overall effect of the conduct of Reader's case was thus that he had no explanation. That was much more starkly shown by his conduct at the trial than by anything that he had not said before the trial. It is of some interest in this connection also that when, after the summing-up, Reader's counsel objected to the section 34 direction the judge pointed out that the jury were not likely to draw a different inference from that than they might draw from Reader's failure to give evidence: a view that Reader's then counsel conceded might well be correct. We do not find Reader's conviction to have been unsafe.

We should make one final point. We did not have before us counsel who represented Reader at the trial, and so what we now say is subject to any explanation that he might have given. However, we were told by both Miss Ascherson and Mr Orme that there was no discussion with the judge before speeches, or before summing-up, of how he might direct the jury. We find that entirely unsatisfactory. This court urges time and again the desirability of such a review, and finds time and again that that guidance has been ignored. There was a particular reason why such a review was necessary in this case. Reader's counsel was pursuing a special and perhaps surprising line of defence, which depended, at least so far as his section 34 argument was concerned, on not relying on the evidence given by defence witnesses, including his client's own brother. That may not have been apparent to the judge, any more than it was apparent to us. The very least that counsel should have done was to make clear to the judge, before he summed up and not afterwards, what Reader's case was, and how that affected the judge's directions. Had that been done, we think it unlikely that any misdirection would have occurred.

There is yet a further reason for such a course. We have accepted for the purposes of this appeal that Reader did not rely in his defence on any fact asserted by his co-defendants and their witnesses. However, whether that was in fact the case should have been a matter for the judgement of the trial judge, who is far better placed than is this court to assess the reality of the trial. It is incumbent on counsel to give him that opportunity. It by no means follows that, just because a defendant's counsel has formally disclaimed reliance on other defendants' evidence, the judge may not conclude that the reality is that he does fall within section 34. We think therefore that we should warn the profession that it should not be assumed in future appeals that this court will accept assertions that an appellant at the trial did not rely on facts, and therefore was not subject to section 34, when the trial judge has not been invited to make that assessment.

In the event, however, all three appeals are dismissed.