England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		16th October 1998

LORD JUSTICE MANTELL: On 21st November 1997 at Wood Green Crown Court the appellant was convicted of conspiring to handle stolen goods and sentenced to three years' imprisonment. He now appeals against his conviction by leave of the single judge.

It is not necessary, given the grounds of appeal which have been argued before this Court, to deal with the facts of the case in any great detail; a summary will suffice.

Between 15th August 1995 and 27th October 1995 six heavy commercial vehicles had been stolen and some of them brought to what we shall call a depot at Eley Trading Estate in north London where they were seen by two police officers keeping observations. The appellant's connection with those stolen vehicles was in the first place noticed when a Renault tractor unit with a low loader attached belonging to the appellant was seen on 24th October. Then another heavy vehicle, a Volvo F10 unit registered in the name of Oakwood Haulage at 40 Millfields Road, London, was seen, and that address was one with which the appellant had a connection. Then on 29th October the appellant himself was seen at the depot, where he was spoken to by police officers and arrested.

The case against him, which Mr Hynes, who appeared on his behalf in the appeal, has conceded was sufficient on the facts to support a conviction, was that he was found to be in possession of six vehicle identification numberplates, a rivet gun, a mobile telephone (the latter having been taken from a stolen tractor unit) and some bolt croppers which could be connected with the theft of one of the heavy vehicles. Further than that, there was evidence of one such vehicle having been shipped by the appellant from the United Kingdom to Eire in the name of the appellant.

The appellant's defence advanced at trial was that he had a legitimate business buying commercial vehicle and plant on the United Kingdom mainland and exporting it back either to Northern Ireland or the Republic of Ireland where it could be sold at a profit. More specifically, he said that he had obtained the vehicle in which the incriminating items were discovered shortly before his arrest; that he had bought it from a man called McPhillips in the course of his business, and consequently his possession of those incriminating articles did not point to his guilt of the offence charged.

Against that background, brief as it is, Mr Hynes has submitted five grounds of appeal. In argument he has conceded that the first three are weak and has concentrated upon grounds 4 & 5, in respect of which he was given leave by the single judge. However, as he has not expressly abandoned the first three grounds it is necessary to deal with them, albeit briefly.

The first three grounds concern the admissibility of a conversation which took place between the appellant and PC Hogan on 29th October 1995, so it was alleged, at what we have called the depot. The police officer was putting information to the appellant which he had obtained from McPhillips who was standing some little distance away. On being told that McPhillips had said that he, the appellant, was the boss, the appellant was recorded as having replied, "No, I don't know him at all". Then when the police officer said, referring to McPhillips, "He told us he didn't own the vehicle", the appellant was credited with saying, "I don't know nothing about the lorry". At trial the defendant denied that any such conversation had taken place but accepted that if he had made the responses which he was alleged to have made they would have been lies.

The first ground is that the appellant should have been cautioned. C:10.1 of the Codes of Practice under the Police and Criminal Evidence Act 1984 make it plain that a person need not be cautioned if questions are put other than for the purpose of obtaining evidence which may be given to a court in a prosecution. For example, there is no need for a caution if questions are put simply to establish identity or ownership of any vehicle. It is only where a person is suspected of an offence that he must be cautioned before questions are put. It is apparent that the appellant was only being asked questions in order to establish the ownership of vehicles. There was at that stage no sufficient basis for suspecting him of crime and a caution was not called for. Nor, on the material available, does it appear to us that the judge was wrong in concluding, as must have been the case, that this was not an interview. In any event it was open to him in the exercise of his discretion to admit the evidence and we can find no basis for criticising his decision so to do.

The second ground is another of those in which Mr Hynes has little confidence. It is expressed as follows:

"The judge erred in failing to establish whether there were breaches of the Police and Criminal Evidence Act codes and to consider section 78 of the Police and Criminal Evidence Act."

We suppose that ground depends upon the fact that the ruling by which the evidence was admitted is in very short form. The judge simply said, "I think that is admissible". It is true that the judge did not deal expressly with any submission which may have been made as to a breach of the Police and Criminal Evidence Act 1984 or of the codes made thereunder. Nor did he specifically claim to be exercising a discretion under section 78 of the Act. However, since it has not been possible to identify any possible breach of the Act or of the codes it would seem that it was unnecessary for him to do so, and in so far as it was necessary for him to exercise a discretion under section 78 it is inconceivable that he failed to have regard to the provisions of that section in arriving at his decision.

The third ground depends upon evidence having been admitted of what a third party had said in the absence of the appellant. Here there is a reference to what McPhillips was claimed to have said to the police. In the ordinary way statements made by a third person when the accused is out of earshot cannot be evidence of their content. However, if put to the accused and responded to, then depending upon the circumstances the conversation may be admissible. If what has been asserted by the third party is assented to there is usually no difficulty. Similarly the conversation may be admissible where the response can be proved to be a lie. That was the position here. Whether or not the ipsissima verba of the third party should be employed or whether the conversation should be edited so as to avoid disclosing the source of the information will usually be a matter for agreement between prosecution and defence or fall within the discretion of the judge. If called upon the judge will no doubt exercise his discretion in such a way as to avoid unfairness. Since what was said by McPhillips was accepted by the appellant to have been true there could be no possible prejudice to the appellant in allowing the jury to know the source of the information. Nor in the circumstances was any direction called for as to the admissibility or otherwise of what McPhillips had said to the police.

The fourth ground is one upon which Mr Hynes does place reliance. It is one of the two grounds which was thought to be arguable by the single judge. It arises out of the conversation to which the previous ground of appeal refers and depends upon the failure by the judge to give what is commonly termed a Lucas direction. It is not disputed that no such direction was given. The circumstances in which such a direction will usually be necessary were set out by this Court in R v Burge & Pegg [1996] 1 Cr App R 163 at 173D. The third and fourth circumstances mentioned there are relevant. We set them out:

"3. Where the prosecution seek to show that something said, either in or out of court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved.

4. Where although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so."

In our view there can be no doubt that the evidence of the conversation containing the lies was adduced by the prosecution in support of their case. There could be no other reason for the evidence to be led. The fact that the prosecution resisted the attempt by Mr Hynes to have the evidence excluded makes that clear beyond a peradventure. It is true that the judge placed no emphasis upon the lies in the course of summing up, but that is not to say that the jury would not and did not take them into account in reaching its verdict. In our judgment it was necessary for the direction to be given. However, this was not a case in which the judge sought the assistance of counsel as to the directions which might be appropriate, and counsel for their part did not think it necessary or desirable to make any submissions in relation to this or any other direction which the judge might have been proposing to give. Indeed, Mr Hynes has told us that he cannot remember whether or not he noticed the omission from the summing up.

In Burge & Pegg in giving the judgement of the Court, Lord Justice Kennedy said this at pp. 173 and 174:

"In our judgment, a judge would be wise always, before speeches and summing-up, in circumstance number four, and perhaps also in other circumstances, to consider with counsel whether, in the instant case, such a direction is in fact required, and, if so, how it should be formulated. If the matter is dealt with in that way, this court will be slow to interfere with the exercise of the judge's discretion."

And then:

"The judge should, of course, be assisted by counsel in identifying cases where a direction is called for. In particular, this court is unlikely to be persuaded in cases allegedly falling under number four above, that there was a real danger that the jury would treat a particular lie as evidence of guilt if defence counsel at the trial has not alerted the judge to that danger and asked him to consider whether a direction should be given to meet it."

Now here, as we have held, both circumstances 3 & 4 arose. Consequently the caveat issued in Burge & Pegg is not to be strictly applied. However the fact that Mr Hynes did not raise the matter with the judge at any stage either before or after summing up leads us to think that it was not a large feature in the case and that the absence of the usual direction, at any rate standing alone, should not lead us to think this conviction unsafe.

The fifth ground of appeal concerns the interview which took place on 9th May, that is following arrest. It is said that that interview should not have taken place because prior to its commencement there was sufficient evidence to charge. Consequently it is submitted that the evidence of the interview was inadmissible and the judge should not have employed section 34(1)(a) of the Criminal Justice and Public Order Act 1994 for the purpose of inviting the jury to consider whether or not to draw inferences adverse to the appellant. Then complaint is made of the judge's decision to give such a direction in the face of evidence and/or information that the appellant's experiences and background had taught him to be reluctant to answer questions coming from the police. Finally, the appellant complains that having decided to give a section 34 direction the attempt made to do so was unsatisfactory.

C:16.1 of the Code of Practice under the Police and Criminal Evidence Act 1984 provides:

"When an officer considers that there is sufficient evidence to prosecute a detained person, and there is sufficient evidence for a prosecution to succeed, and that the person has said all that he wishes to say about the offence, he shall without delay (and subject to the following qualification) bring him before the custody officer who shall then be responsible for considering whether or not he should be charged."

C:11.4 of the code provides:

"As soon as a police officer who is making enquiries of any person about an offence believes that a prosecution should be brought against him and that there is sufficient evidence for it to succeed, he shall ask the person if he has anything further to say. If the person indicates that he has nothing more to say the officer shall without delay cease to question him about that offence."

The combined effect of those provisions is that it is not open for a suspect to be questioned beyond the point when he has been or ought to have been charged. If he is then certain consequences will follow. The first is that the interview is liable to be ruled inadmissible. The second is that the content of such an interview is not available to support the prosecution case and that includes any adverse inference which might be drawn from a failure to answer questions, or to offer an explanation, or to put forward a defence. So much is clear from the decisions of this Court in R v Pointer (CA, unreported, 17th April 1997) and R v Gayle (CA, unreported, 17th February 1998). The submission here is that prior to the interview of 9th May taking place the police had sufficient evidence to prosecute the detained person, that is the appellant, and that there was sufficient evidence for a prosecution to succeed. In support of his submission Mr Hynes points to the fact that following a "no reply" interview the police did proceed to charge the appellant and to bring this prosecution. We have to say that superficially at any rate that is an attractive argument. If it is right however, it would mean that in every case where the police had got together a prima facie case against a suspect they would be bound to charge and the opportunity would be lost not only for the police to question the suspect but for the suspect to put forward an explanation which might immediately dispose of any suspicion held against him. We note however that C:16.1 suspends the obligation to charge until "the person has said all that he wishes to say about the offence". Even absent those express words, we would have been prepared to hold the words "sufficient evidence to prosecute" and "sufficient evidence for a prosecution to succeed" must involve some consideration of any explanation or lack of explanation coming from the suspect. Whether or not the stage has been reached where a suspect ought to have been charged will depend upon the particular facts of the case.

In Pointer to which we have referred there had been a voir dire in which the interviewing officer conceded that he had believed there was sufficient evidence for a successful prosecution of the appellant for the offence with which he was ultimately charged. Here there was no voir dire and, so far as we can discover, no objection to the evidence of the interview. Had there been such an objection we are satisfied that the judge would have been perfectly entitled on the material which is before us to have come to the conclusion that the stage had not been reached when it was necessary for the appellant to be charged. Consequently evidence of the interview was admissible and susceptible to appropriate comment in the course of summing up.

However, Mr Hynes has submitted that it was not fair for the judge to give a direction under section 34(1)(a) of the Criminal Justice and Public Order Act 1994 as to the appellant's failure to answer the questions put to him or to advance the defence which he was to disclose before the jury in due course. It was submitted to the judge, as to us, that given the appellant's deep distrust of the police it was not unreasonable of him to withhold his defence. Moreover, it was said that the reason could not easily be placed before the jury because at the very least it would mean revealing the fact that the appellant had been suspected of terrorist activities. The judge gave due consideration to Mr Hynes' submission and rejected it. In our judgment it was entirely within his discretion so to do.

Finally, it is said that having decided that it was open to him and right to give a direction in line with section 34 of the Criminal Justice and Public Order Act, the direction which the judge did give was inadequate. Its inadequacy is said to lie in the failure to direct the jury that an adverse inference could only be drawn if they concluded that the failure to respond could only be attributed to the appellant having fabricated the evidence subsequently. The decision in R v Condron & Condron [1997] 1 Cr App R 185 is relied upon. In that case this Court said that a direction under section 34 should follow that approved in R v Cowan, Gayle and Ricciardi [1996] 1 Cr App R 1 with regard to section 35. There Lord Taylor, Lord Chief Justice, said that in relation to section 35 the jury should be told that they are permitted to draw an adverse inference if, in spite of any evidence relied upon to explain silence, they were to conclude that silence could only sensibly be attributed to the defendant having no answer or none that would stand up to cross-examination. Lord Taylor did not suggest that it was necessary to refer expressly to the appellant having fabricated the evidence subsequently. Here at p.6 of the transcript of the summing-up the judge said:

"If you are sure that he did fail to mention these facts when questioned - and there is no doubt about it because we have the tape recording transcribed in exhibit 17 - you have to decide as a jury whether in the circumstances they were facts which he could reasonably have been expected there and then to mention. If you conclude, and you say we have considered it with care but reasonably he should have mentioned those things when he was questioned, then if you conclude that he could reasonably have been expected to mention them then the law is that you may draw such inferences as appear proper from his failure to mention these matters at the time, that means you have to say he could reasonably have been expected to mention them at interview."

A little later, dealing with the inferences which they might be entitled to draw, the judge said:

"You are not bound to do so. It is for you to decide whether it is fair to do so. Look at all the facts. That is an option for you to decide. He failed to mention them, he could reasonably have been expected to mention, and you think it is fair, right, and proper, to draw some inference as additional support for the prosecution case. These are matters entirely for you."

He then went on to remind the jury of the reason given by the appellant in evidence as to why he had not said anything in interview. Although that direction is not in precisely the terms envisaged by Lord Taylor in Cowan and adopted by this Court in Condron & Condron it does, in our view, sufficiently cover the point.

It follows that for all the reasons given we are not left in any doubt about the safety of this conviction and the appeal will be dismissed.