England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		17th February 1998

LORD JUSTICE OTTON: In the Crown court at Snaresbrook before His Honour Judge Mitchell, the appellant was convicted of three offences of supplying class A controlled drugs to another. He was sentenced to seven years' imprisonment on each count concurrent. He appeals against conviction by leave of the single judge.

The facts can be briefly stated. On 26th July 1996 two undercover police officers called at 106 Finsbury Park Road in North London separately. Each was supplied with a rock of crack cocaine in exchange for £20. On 14th August the same two officers called at the address together and following negotiation were supplied with three rocks of crack cocaine in exchange for £60. In the meantime other police officers had been conducting a surveillance operation in the area. The surveillance included logging and videoing the comings and goings at number 106 where the appellant was the registered tenant. In the event on 14th August the officers went into the house and one of them was wearing a recording device. This recorded the whole of the business transaction with the appellant. When they had completed their business the appellant gave the drugs to the officers. He was in a cheerful mood and told them to come back at any time. On the same day Sergeant Lindley led a police raid on the premises and the officers found that the appellant and two women were present but no one else. There was money on the premises but no drugs.

The appellant did not dispute that he had supplied the drugs when he was interviewed but it was his case that the premises had been taken over by drug dealers, that he was terrified by them and he was acting under duress at the time. However, when he was interviewed by the police his solicitor advised him to say nothing. At an appropriate point in the trial, that is just before the evidence of the interview was about to be given, the defendant sought to exclude any reference to this interview at all on the basis that there was enough evidence with which to charge the appellant and without the necessity for an interview. The learned judge found that in order to establish whether the accused had said what he wished to say, it was quite proper to conduct an interview. The fact that a solicitor had indicated a client would not be replying did not prevent the questions being asked. Otherwise it drove coach and horses through the effect of section 34. The appellant was entitled to exercise a right of silence but inferences could be drawn both by the judge and by the jury. That being so the evidence was led.

The appellant gave evidence. He told the jury that he had lived at the house for about six years. It was a property owned by a housing association and he was the tenant. He had lost one eye and the top of his left hand had been cut off by an incident with a machete. He had been a long term user of crack and it had destroyed his marriage. Crack was easily available in this area of North London. His house was used for smoking it and by prostitutes plying their trade. In mid-1996 a number of flats selling crack had been closed down by the police. After that two men came to his address - one was depicted on the police video, a tall man who went by the name of "Hotfoot". He did not know the name of the other shorter person. They offered him a deal whereby if he sold crack they would pay him in crack to feed his habit. He declined at first. Then they returned and asked him again. The short man got angry when he said no. He threatened to damage or beat the appellant up. He was going to "do his eye out" and the man stabbed at him with a wallpaper scraper, cutting his finger, and slashed at him. Later the men returned to the house. A brick was thrown through the window, they got in, knocked a girl to the floor and then threatened they would put him cold, that is kill him, unless he consented. The next time they came he agreed. The arrangement was that if anyone came to the door that Hotfoot did not know, the appellant was to deal with him or her. The appellant was not in the event given any crack. The drugs were brought in by a girl called "Princess". The appellant was thoroughly scared. He did not want any more damage to his body or to be dead. He was using a lot of crack at the time and he consented to this arrangement. He remembered the first occasion when the two police officers came. On the second occasion he again admitted being on the premises but he said Hotfoot was there on that occasion and had told the appellant to find out what the two visitors wanted. Hotfoot said he had only got three rocks on that occasion.

When he saw his solicitor he told him that he had done what the Crown asserted, namely dealt with the drugs, but he was instantly advised to make no comment. Accordingly, that had been his attitude when the police sought to interview him and accounted for the fact that he made no reply in response to each of the questions put to him.

In the event the jury convicted. It is right to say that in his final speech prosecution counsel, having cross-examined the defendant on the late production of that defence, commented to the jury that when interviewed the appellant had made no mention that what had occurred was under duress and that the defence was of recent fabrication. This was perfectly in order as the law was then perceived to be.

Section 34 of the Criminal Justice and Public Order Act, sub-paragraph (1) provides:

"Where, in any proceedings against a person for an offence, evidence is given that the accused-

(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

...

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, then subsection (2) below applies."

Subsection (2), the relevant parts provide:

"Where this subsection applies-

... (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper."

It must also be noted that in the Codes of Practice governing police procedures, code C:16.1 is in these terms, in so far as material:

"When an officer considers that there is sufficient evidence to prosecute a detained person, and that 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 bring him before the custody officer who shall then be responsible for considering whether or not he should be charged."

Note should also be taken of C:11.4 which 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."

When the judge came to sum up to the jury, he did so in the following terms at page 9H:

"You know, members of the jury, that when the defendant was arrested he was subsequently questioned. You heard some questioning of the officers about this and you have heard the solicitor mentioned by the defendant, that solicitor saying to the defendant that he was to make no comment to any questions.

Well, members of the jury, of course all defendants are entitled to have the advice of a solicitor at the very earliest stage and that is quite right and something that has developed only over the last 10 or 15 years as a right and that right is a sacrosanct one, members of the jury. But, members of the jury, I have to tell you of course that the law is that where somebody says nothing, that is remains silent, certain considerations arise. You know, members of the jury, that the defendant as part of his defence has relied on duress - he has raised it. Indeed, he admits that he did not mention that fact when he was questioned under caution before being charged with the offence.

The prosecution case is that in the circumstances when he was questioned he could reasonably have been expected then to mention something about duress. The law is that you may draw such inferences as appear proper from his failure to mention it at the time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot on its own prove guilt, but, depending on the circumstances, you may hold that failure against him when deciding whether he is guilty."

And later:

"If he failed to mention duress, as you know he did when he was questioned, you must decide whether in the circumstances which existed at the time it was a fact which he could reasonably have been expected then to mention. So that should be your approach, members of the jury, to the defendant's silence.

You may think that the reason it is there is that if somebody does mention a particular defence, such as duress, then the police are on notice and they can make their enquiries about it."

And later:

"They might also want to look into whether the local authority would move somebody if somebody were under threats of serious injury ... That is why, you may think, that this rule has been introduced, but you have the direction and you act upon it according to the way you see it and following the direction I have given you. It very much leaves it in your court, if I may use the colloquialism. You are the persons who decide whether to use it against the defendant or not."

On 7th April, some four months later, the Court of Appeal, with the Vice Precedent, Lord Justice Rose presiding, considered and decided R v Pointer. The facts of that case bear a considerable similarity to those of the present case. Undercover police officers attended a nightclub called Happy Jax pretending to be potential purchasers of Ecstasy. On occasions they did in fact buy the drugs. Subsequently there was a police raid and the appellant was arrested. He was quite obviously dealing with the Ecstasy tablets and the prosecution had sufficient grounds upon which successfully to mount a prosecution against him. Unfortunately for the outcome of the case the police went on to put questions and answers to the suspect after caution and the evidence was admitted at the trial. The jury duly convicted. On appeal the appellant's counsel submitted that there had been a breach of Code C:16.1 by the officer asking questions of the defendant when he believed there was sufficient evidence to successfully prosecute him. Consequently, the fact of the interview should not have been admitted before the jury and the judge should not have canvassed with the jury the possibility of drawing an adverse inference against the defendant. In other words section 34 could not be said to apply because the officer was not trying to discover whether or by whom an offence had been committed. The Court of Appeal upheld the submission that section 34 could not apply where there was a breach of the Code. At page 12 of the judgment the Vice President said as follows:

"It would drive a coach and horses through the provisions of the code if it were open to an officer, without complying with the code provisions, to ask a defendant whether he wanted to say anything about the circumstances of an offence in relation to which the officer was satisfied that he already had a powerful case. If, in such circumstances, a suspected person made an admission, the first thing which would be said on his behalf, as it seems to this Court, would be that there had been a breach of the code in relation to interviews.

Mr Mitchell [counsel for the Crown] was constrained to concede that section 34 of the Criminal Justice and Public Order Act 1994 could not be regarded as applying to the present case. However, he submitted, the terms of the judge's summing-up ... are such as to indicate to the jury in the clearest terms that it would not be right for them to draw any inference adverse to the defence from the fact that the defendant did not answer the questions which were put to him. In our judgment, that submission is well founded."

In other words the judge did not leave to the jury the possibility of drawing the adverse inference, little harm was thus done and the court was able to uphold the conviction.

Counsel for the appellant, Mr Blaxland, submits that the learned judge was wrong to reject the submission in the course of the trial that the interview should not be led at all. He submitted that at the time of the interview the Crown did have sufficient evidence and section 34 did not therefore apply because the questions were not directed to discovering whether or by whom offences were committed. There was therefore no lawful basis for an adverse inference to be drawn. Accordingly the judge should have exercised his discretion to exclude the evidence of the interview on the basis that the questioning was in breach of paragraphs 11.4 and 16.1 of Code C. Furthermore, the judge in the exercise of his discretion under section 78 of the Police and Criminal Evidence Act should have held that it was unfair for that evidence to be admitted. Moreover, he submits, it was recorded on the custody record prior to interview that the solicitor submitted that there was sufficient evidence to charge and that therefore there was a duty to charge him without delay and thus any further question was out of order.

Mr Blaxland submits that if Pointer had been decided before this case came before the judge in this case he would inevitably have ruled differently and in an undoubtedly contrary fashion and excluded the evidence.

Counsel also submits that there is no distinction between this case and that of Pointer where it was accepted by the Crown and by the Court of Appeal that the provisions of section 34 did not apply because the police had sufficient evidence to charge. The only reason for not quashing the conviction in Pointer was that the judge had advised the jury against drawing adverse inferences. Consequently, he submits, that the long direction given by the judge amounts, retrospectively at least, to a misdirection which justifies this court in setting aside the conviction.

Mr Walsh, on behalf of the Crown, realistically and in our view correctly concedes that following the judgment in Pointer section 34 of the 1994 Act could not apply on the facts of the present case. The police clearly did have sufficient evidence with which to charge the appellant before the interview began and could have done so. He goes on to point out the anomalies which can and undoubtedly will arise from the decision in Pointer. However, they are a matter of no import to this case or any issue that we have to consider or determine. However, he submits on behalf of the respondents that the convictions of the appellant are not unsafe within the meaning of section 2 of the Criminal Appeal Act 1968 (as amended). This is not a case, counsel submits, where the court could properly not conclude the fact that the appellant admitted and committed the offences of which he was convicted. The appellant did not challenge the evidence called by the prosecution that he had dealt with crack cocaine to the individuals concerned as alleged in the indictment. Counsel then explored the strengths and weaknesses in the so-called defence of duress. If the jury were to consider that he was being paid in crack cocaine or money for his dealing as amounting to duress, he submits this would not have been given any credence by the jury. Moreover, he did not complain of duress to his housing association in order to get rehoused which would have removed him from the clutches of those exerting the so-called duress.

We have considered the submissions of counsel on both sides with the greatest of care. We consider that the Crown's concession is properly made. We have come to the conclusion that this verdict cannot stand alongside the decision of the Court of Appeal in Pointer. We are bound by that decision; there is no basis to distinguish it. We have no hestitation in saying that if Pointer had been available at trial the judge would probably not have ruled as he did. Consequently no evidence would have been adduced of the no reply interviews. The only real issue in the case was whether the jury were satisfied that the appellant had not acted under duress. We accept the arguments of the Crown; the defence was very thin. However, the judge did not withdraw the defence from the consideration of the jury, nor was he invited to do so by the Crown before he began his summing-up. The Crown undoubtedly and correctly in our view, as the law then stood, cross-examined on the late introduction of the defence. He addressed the jury accordingly. More to the point the direction in the summing-up was to the effect that the jury could draw an adverse inference from the failure to answer questions. This makes the case for the appellant even stronger than that of Pointer where the judge directed that the jury should not draw the inference. Thus, this direction must inevitably have led the jury to consider, and probably to conclude, that the defence was of subsequent fabrication and thus no or little credence could be given to it. We are equally satisfied that if the case of Pointer had been decided before the present case the learned judge would not have given a section 34 direction in the terms that he did or at all. Accordingly this direction amounted to a misdirection.

The final question is whether the verdict of the jury is unsafe. Mr Walsh drew our attention to the case of R v Graham and Others (1997) 1 Cr App R 302 and in particular a passage at page 308 in the judgment of the court given by Lord Bingham, Chief Justice:

"This new provision [that is section 2], the subject of penetrating analysis by Sir John Smith QC [reference given], is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the Court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal. It can make no difference that the appellant might, if duly indicted, have been rightly convicted of some other offence. Where the condition in section 2(1)(a) as it now stands is satisfied, the Court has no discretion to exercise."

We are of the state of mind notwithstanding the arguments advanced by Mr Walsh, that this state of affairs leaves us with a sense of unease that the defence of duress was not properly ventilated before the jury. Accordingly, we reject the argument that notwithstanding the misdirection and the irregularity in the trial we should regard the conviction as safe. Accordingly we allow the appeal and quash the conviction.

We have heard argument as to whether or not there should be a retrial. Mr Blaxland has pointed out that the appellant has already served 18 months' imprisonment which is equivalent to a sentence of three years' imprisonment. There was no evidence of gain from these activities and accordingly we should exercise our discretion and refuse to order a retrial. We are not so persuaded. We consider that there was abundant evidence upon which the jury could properly convict provided they rejected the defence of duress. We consider that it is in the interests of justice that there should be a retrial and we so order.

Mr Walsh, there must be directions about the retrial. A Bill of Indictment must be preferred within two months. So far as you are concerned Mr Blaxland I expect you will want a legal aid certificate for the retrial?

MR BLAXLAND: My Lord, yes and a solicitor as well.

LORD JUSTICE OTTON: Yes, one counsel and one solicitor. Are there any other applications?

MR BLAXLAND: No.

LORD JUSTICE OTTON: The retrial will be at Snaresbrook again. There is no reason why it should not be.

MR WALSH: There is not, my Lord.