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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 >> McGarry, R v [1998] EWCA Crim 2364 (16 July 1998)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1998/2364.html
Cite as: [1998] 3 All ER 805, [1999] 1 WLR 1500, [1999] WLR 1500, [1999] 1 Cr App R 377, [1999] 1 Cr App Rep 377, [1998] EWCA Crim 2364, [1999] Crim LR 316

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PATRICK JOHN McGARRY, R v. [1998] EWCA Crim 2364 (16th July, 1998)

NO: 98/2800/Y4

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 16th July 1998

B e f o r e :

LORD JUSTICE HUTCHISON

MR. JUSTICE SCOTT BAKER

and

THE JUDGE ADVOCATE GENERAL

HIS HONOUR JUDGE RANT CB QC

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

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	REGINA
	- v -
	PATRICK JOHN McGARRY

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Handed-down judgment of Smith Bernal Reporting Ltd

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR WEBSTER appeared on behalf of the Appellant

MR HOLLAND appeared on behalf of the Crown

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(As approved by the Court )

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Crown Copyright

LORD JUSTICE HUTCHISON:

On 27th March 1998 in the Crown Court at Manchester the appellant was convicted of unlawfully inflicting grievous bodily harm on Craig Cathcart. On 27th April he was sentenced to 12 months imprisonment. He appealed against conviction with leave of the single judge and, on 9th June 1998, we allowed his appeal and quashed his conviction. We now give our reasons.

The encounter which led to the charge occurred in the early hours of 13th February 1997 outside the Bamford Squash Club in Manchester. The appellant, some of his friends and a number of other people had been drinking in the club. As the appellant left he delivered a single punch to the face of the victim, Craig Cathcart who was rendered unconscious (whether from the punch or from striking his head when he fell to the ground) with the unfortunate consequence that he lost his hearing. He had no recollection of the attack or of any significant events proceeding it.

The Crown’s case was that the appellant had made an unprovoked attack on the victim. The appellant’s case was that he had struck him in self-defence. The appellant, the victim and all the witnesses had been drinking during the evening and some were quite drunk.

After the encounter the appellant quickly left the scene. The police were summoned and Police Constable Clarke attended and spoke to a number of those still at the scene: on his return to the police station he recorded his impression that they “were all heavily under the influence of drink”. A man named Jason Anderson, one of the victim’s friends and in due course a prosecution witness, was not willing to make a statement while intoxicated, but did so the next day. No one else was willing to give a statement that night but two young women, Janice Heatherington and Lisa Flanaghan, who said they did not wish to get involved and would not give their names or addresses, told Police Constable Clarke that the attacker was called Paddy Maguire. (Later, after they had seen an advertisement for witnesses, they came forward, made statements, and were called by the prosecution).

Little though the two young women had said it was enough to lead the police, the following day, to go to the appellant’s place of work on what they described as a fishing expedition. When the appellant indicated that he knew something about the incident he was arrested and taken to the police station where, after cautioning him, the police sought to question him. On legal advice he refused to answer questions, and was released on bail. Some five weeks later, on 19th March, the appellant was re-arrested, cautioned and interviewed again. At the beginning of the interview he handed to the police a prepared written statement which read:

"I agree that I was present at the Bamford Squash Club on the date in question. I had an altercation inside the club with the complainant. I agree that I left the club at about ten past one. As I was walking up the path towards the pavement the complainant was at my left hand side. He said something to me and lunged forward with his right hand at which point I punched him in self-defence. I have nothing further to say."

Thereafter, though questioned, he simply answered “No comment”.

At the trial the prosecution witnesses who spoke of the incident were Jason Anderson, Janice Heatherington and Lisa Flanaghan. Each of them described the appellant’s punching Mr. Cathcart. None saw anything done by the victim to provoke or justify the punch. Police Constable Clarke also gave evidence about his investigations and the state of intoxication of those at the scene on his arrival there.

The appellant gave evidence. He described an altercation on the dance floor in which, he said, Mr. Cathcart’s head had contacted his. He said that as the crowd left he was heading for the pavement to get a taxi. He passed Mr. Cathcart and there was a further exchange, with some trading of insults. He said that Mr. Cathcart then lunged at him, rather as would a rugby player when handing off an opponent. Fearing a further attack, he swung round and delivered a single punch. He left the scene, thinking that Mr. Cathcart would recover in a minute or two.

The appellant, though cross-examined, was not asked questions about his no-comment interviews. The stance adopted by the Crown was that no adverse inferences could properly be drawn from the appellant’s refusal to answer questions on 14th February. So far as the second interview went, they accepted, once the appellant had given evidence, that he had not relied on any new fact not covered by his short prepared statement - he had done no more than put some flesh on the bones of that account. Accordingly, Mr. Webster for the Crown did not invite the judge to tell the jury that they might draw inference from the appellant’s failure to answer questions at the second interview - indeed the last sentence of his submission (which preceded speeches) on the subject of s. 34 of the Criminal Justice & Public Order Act 1994 was: “In respect of the second interview... I invite this court to say it would not be appropriate to invite the jury to consider the adverse inferences point in this case”.

The judge thereupon said:

"To any competent jury it is going to be fairly obvious is it not that what happened in this incident was known by the defendant from half past one of the morning of the 13th of February. He did not need to be told what other people had said about it and it is going to be obvious that knowing that he said nothing on the first interview as he is entitled to do so. Thereafter knowing the matter was the subject of fairly intensive investigation on the 19th March, he then said as little about it as he could do, outlining in pleaded terms the bones of his case but not actually providing any flesh on the bones at all. Therefore it would be open to the jury even un-directed to form certain views about that matter would it not."

Defence counsel responded;

"Your Honour, yes. I concede that my learned friend was entitled to cross-examine - if he wished - on the deficiency in detail presented in the second interview but that is a matter entirely divorced from the adverse inference provision in section 34."

The judge then ruled as follows:

"I shall not in the circumstances be inviting the jury to consider drawing any adverse inferences but I will not be directing them not to if that is what they do of their own accord."

Mr. Holland sought to rely on a number of grounds of appeal, some of which we did not find persuasive. Thus he challenged the judge’s rejection of his submission that the fact that Mr. Cathcart had unhappily been rendered deaf should not be revealed to the jury; and his rejection of the further or alternative submission that, because he could say nothing useful as to the circumstances of the alleged attack, the Crown should not be allowed to call Mr. Cathcart at all because of the prejudicial effect of seeing a deaf man examined and cross-examined. These were, however, plainly matters for the judge’s discretion. He also criticised - it seemed to us unjustifiably - the way the judge dealt with Police Constable Clarke’s evidence about drunkenness and also his suggested failure to explain to the jury the significance of the appellant’s contention that there had been an altercation inside the club. However, he also relied on two grounds which we consider were well founded: first, the way the judge dealt with the “no comment” interviews and secondly the judge’s direction on self-defence. We shall consider the interviews first.

The directions the judge gave were the following:

"The defendant was seen the following day and at that stage, the police did not have any statements. The defendant was cautioned in the terms you have heard and on advice and on his election he chose to make no comment. Some five weeks later he was interviewed again by which time the police did have some statements, all the statements in fact. The defendant with the benefit of legal advice attended the police station and presented the police with a prepared statement. In that statement - you have it before you - the contents of the statement are contained within the transcript of the interview - in that he set out what in fact, what his position was. Accurately you may think but you may think shortly. He did not raise any issues in his defence before you yesterday which he had not in terms raised in the statement in March. It might perhaps be accurately described as the bones of his case and you had the phrase suggested to you yesterday - during the course of his evidence, he put the flesh onto those bones. He has therefore responded - you may think - perfectly properly and reasonably to the caution that he was given . Namely if you fail to mention anything now which you rely on later in your defence, it could harm your defence - as it is sometimes put. You may come to the conclusion, members of the jury, as you were invited yesterday - and I certainly would not divert you from that - that it would be unreasonable for you to draw any adverse inferences from the fact that on the 14th February he did not given the explanation that he subsequently gave on the 19th of March. Matters were still very much in a state of flux. Although you will want to bear in mind of course he was the one person above all who knew exactly what had happened because he was there at the centre of it all the way through. But on the 19th March, he made his position clear but without the detail that he gave to you yesterday. Therefore his explanation has - as occurs many times in cases of all sorts - unfolded as time goes by an initial indication in March about the situation and why he felt justified in striking the blow and the details added some twelve months later at trial. That does not, by any means, mean it is necessarily a fabricated story. Nor does it mean that you should draw any adverse inference from that fact. It is something that you will wish to take into consideration."

The grounds of appeal assert that this passage was damaging to the appellant’s case and amounted in effect to an invitation to the jury to criticise him on the strength of his failure to respond to questions. What the judge should have done, it is contended, was simply to direct the jury in terms that they must not draw any adverse inference from the appellant’s failure to answer questions. This ground, therefore, gives rise to two questions. The first is whether the judge was in the quoted passages doing that which the prosecution had invited him not to do and which he had said he would not do - leaving it open to the jury to draw adverse inferences. That is a question to do with the facts of this particular case. The second question is of more general importance and is whether, when a judge has concluded that the requirements of s.34 of the 1994 Act have not been satisfied and that therefore it is not open to him to leave the possibility of drawing adverse inferences to the jury, it is incumbent on him positively to direct them that they must not in any way hold against the defendant his failure to answer questions. Counsel for the appellant was not able to refer us to any authority which expressly dealt with this question; and counsel for the respondent, who submitted that the judge was under no such obligation, was likewise unable to refer us to authority on the point. Though we considered that the answer must logically be that the judge was, in the circumstances postulated, obliged to give an “old-style” direction, we felt it advisable to consider the matter further and it was for that reason that we decided to give our reasons in writing.

There are, it seems to us, two compelling arguments as to why the second question should be answered affirmatively. The first is that by section 34 Parliament was making a limited modification to a firmly established rule of the common law - see R v Gilbert (1977) 66 Cr. App. R. 237 and R v Alladice (1988) 87 Cr. App. R. 380. The second is that unless, in a case where section 34 does not apply, the jury are given a direction not to draw adverse inferences, there must be a danger that they will do just that, without the defendant having the benefit of their being directed in accordance with s. 34, containing the requirements that it does, some of which are beneficial to the defence.

Subsection (1) of section 34 provides that where evidence has been given that the accused on being questioned under caution by a constable trying to discover whether and 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 ..... subsection (2) below applies"

Subsection (2) permits the jury in determining whether the accused is guilty to draw such inferences from the failure as appear proper.

It is only where the conditions specified in subsection (1) are satisfied that subsection (2) applies. While the questions whether the accused has relied on a fact in his defence and if he has whether he failed to mention it in interview are questions of fact for the jury (see R v Argent [1997] 2 Crim. App. R. 27 at page 32 F ) there will plainly be cases in which it is appropriate for the judge to decide as a matter of law whether there is any evidence on which a reasonable jury properly directed could conclude that either or both of those requirements had been satisfied. Put another way, if the prosecution have accepted that the accused did not in interview fail to mention any fact subsequently relied on in his defence and the judge considers that that was a proper view, no question of inviting the jury to draw inferences from his failure to answer some of the questions put to him in that interview can arise. Prosecuting counsel adopted such a position in this case and it seems that the judge did not consider that he was wrong to do so: and certainly we do not consider that counsel’s view was not a proper one. The question is, evidence having been introduced of both no comment interviews, what if any direction should the judge have given the jury as to how they should regard the appellant’s refusal to answer questions on the matters of detail put to him by the police?

While, so far as we can discover, the authorities so far decided do not in terms deal with this question, there are some pointers to the answer we have already suggested as being the logical one. Thus in Argent at page 32 B Lord Bingham C.J. said: “Subsection (2) (d) empowers a jury in prescribed circumstances to draw such inferences as appear proper”. The words which we have emphasised embody a recognition of the fact that s. 34 is a section which provides for an exception to the common law rule: and it is of course the case that the 1994 Act does not abolish the entitlement of a suspect to remain silent but only and in a limited way derogates from the common law rule that no adverse inference should be drawn against him when he has, after caution, exercised that right. It is not without significance that the new standard caution includes the words: “But it may harm your defence if you do not mention when questioned something which you later rely on in court”.

The conclusion we have reached is that, in those cases where the judge has ruled that there is no evidence on which a jury could properly conclude that the defendant had failed to mention any fact relied on in his defence, and that therefore no question arises of leaving the possibility of drawing inferences to the jury, he should specifically direct them that they should not draw any adverse inference from the defendant’s silence. If this is not done, the jury will be left without any guidance as to how they should regard the defendant’s refusal to answer: and that may be seriously prejudicial to the defendant. This is because in a case where s. 34 does apply, the jury have to be told to consider whether the accused - not a reasonable man but the man being tried, with all the “qualities, apprehensions, knowledge and advice.... he is shown to have had at the time” ( Argent 33 C) - could reasonably have been expected to mention the relevant facts.. They are thus enjoined not arbitrarily to draw adverse inferences - something against which they need to be warned just as much in a case where section 34 does not apply. The common law rule requiring that juries should receive a direction against holding an accused’s silence after caution against him plainly recognises that a jury, without such guidance, may treat silence as probative of guilt. The jury should not, therefore, in the class of case we are discussing, be left in some no-man’s-land between the common law principle and the statutory exception, without any guide to tell them how to regard the defendant’s silence. Still less should they be directed in terms which leave it open to them to draw adverse inferences.

We have concluded that the learned judge was in error in the present case in two distinct but related ways. First, he should have directed the jury that they must not draw any adverse inference from the appellant’s failure to answer questions in either interview; secondly he should not have directed them in the way he did, which we consider would have been understood by them as leaving it open to them to draw adverse inferences in respect of his silence in one or both of the interviews.

We consider that these errors suffice to make the conviction unsafe and in the circumstances we need say relatively little about the other ground of appeal which we regard as of substance - the criticism of the judge’s direction on self-defence. On the facts of this case that issue was both clear and simple. The prosecution witnesses described an entirely unprovoked and unlawful blow, delivered to an inoffensive victim. The defendant’s account was of a lunge by a man (whom he had reason to believe from what had happened earlier on the dance floor harboured some ill-will towards him) to which the defendant, instinctively and legitimately defending himself, responded with a single punch. What was required, therefore, was a short, clear and accurate direction in conventional terms as to self-defence.

The learned judge’s direction on self-defence occupies four and a half pages of transcript, which we do not feel it necessary to quote, but which we think can fairly be said to lack cogency and in places to be confusing. It does not include such

common-place observations as that a person defending himself cannot be expected in the heat of the moment to weigh precisely the amount of defensive action that may be necessary; or the related observation that if the defendant believed or may have believed that he had to defend himself and did no more than what he instinctively thought was necessary, that would be very strong evidence that the amount of force used by him was reasonable. We think that the omission of these usual (even if not obligatory) directions is probably explained by the judge’s decision to direct the jury in the somewhat discursive way that he did, rather than to adhere to a more conventional formula: and we think there is reason to doubt whether a jury would at the end of it all have had a clear understanding of the relevant principles. Whether, had this been the only ground of appeal, it would have led us to conclude that the conviction was unsafe it is unnecessary to say: what we do say is that, had we entertained any doubts (which we do not) as to whether the misdirection on failure to answer questions made the conviction unsafe, this additional criticism would have resolved them.

For these reasons we allowed the appeal and quashed the appellant’s conviction.

© 1998 Crown Copyright

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