England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th February 2001

LORD JUSTICE KAY:

1. On 1 February 2000 in the Crown Court at Newcastle upon Tyne before His Honour Judge Wood and a jury the two appellants were convicted of causing grievous bodily harm with intent. Betts was sentenced to a total of 3 years detention in a young offenders institution and Hall to 4 years imprisonment.
2. They each appealed against conviction by leave of the single judge. At the conclusion of submissions we gave judgment allowing each appeal and we now give reasons for our judgment.
3. The prosecution case was that on 25 January 1999, two armed men attacked a man called Nigel Caris breaking his arm and then stole money from him. Mr Caris picked out the appellants as his attackers on identification parades. The prosecution further relied on evidence that one of the two attackers called the other 'Bettsy' and on evidence that Hall had a possible motive.
4. The defence of each man was a denial of any involvement and accordingly the issue for the jury was whether Mr Caris's evidence as to the circumstances of the attack and his identification of the attackers were reliable.
5. It is, therefore, necessary to record in a little detail the account of Mr Caris. He described how on the day of his attack, he had gone to a scrap yard in the course of his work. He saw a white Mercedes van and tried the doors. He then heard a voice say "They are stuck" and turned to see the appellant Hall, whom he said he knew as "Johnty".
6. Hall said "This is for Jason" and produced a hammer with which he struck out at Mr Caris's head. Mr Caris raised his arm to protect his head and took the blow on his arm, which was broken by the force of the blow.
7. The prosecution's case was that in mentioning "Jason", the appellant Hall was referring to a man called Jason Wilson. The connection was that Mr Caris had had an affair with Jason Wilson's wife and Jason Wilson was a friend of the appellant Hall.
8. Mr Caris's account of the attack continued that after the initial blow, Hall struck him again with the hammer on the side of his face and on his shoulder. Three further blows were struck and then Hall said "He's all yours Bettsy".
9. Mr Caris said that he was then aware for the first time that Hall was not alone as he felt a blow to his head and shoulders, which knocked him to the ground. He felt another blow and then briefly saw a second man, who was wielding a pick axe handle some 2 to 3 feet in length. There were two or three further blows.
10. Mr Caris described how he looked at the second man but then curled up into a ball to protect himself. His evidence was that he got a good look at the second man but he did not recognise him.
11. After the blows to which we have referred, Mr Caris described how Hall then said "He's got money" and searched through his trouser pocket. He had about £100 on him and Hall removed between £15 and £20.
12. Mr Caris described pushing the two men away and staggering down to the nearby main road, where he went to a car sales office and an ambulance was called. He was taken to hospital where he was detained for a week.
13. On 13 February, he attended an identification parade and identified Betts as one of his attackers. On 23 March, he attended another parade and this time identified Hall as the other man involved.
14. When he was cross-examined, Mr Caris said that he had known Hall by sight for about a year. He conceded that Betts lived very near to his grandmother and that he had lived with his grandmother at one stage. However, he did not think that Betts was living nearby at the time. He had not seen Betts when he was living with his grandmother or at any other time and he had picked him out on the identification parade because he was the second man involved in the attack and not because he had seen him on other occasions. He agreed that he had only had a brief glimpse of the second man.
15. Evidence was given by the man to whom he had gone for help and by Jason Wilson. Mr Wilson said that his wife Alison (known as Alison Redman) had been seeing another man but that he did not know that it was Mr Caris, who had been his best friend. He and his wife had separated 6 months before the attack. Hall had told him that Alison was seeing Mr Caris but by this stage he had already learnt that this was the case.
16. The two appellants were interviewed. Betts was at the time 17. He said that he knew nothing about the assault and that he had done nothing like that. Asked if he had been to the scrap yard that year (a period of 5 or 6 weeks), he said that he could not remember. He claimed that he had got a very bad memory. He agreed that he was called Bettsy but said that was a common nickname for people called Betts. After some further questions his solicitor sought and obtained an opportunity to consult further with his client. When the interview resumed, his solicitor made clear that Betts would exercise his right not to answer further questions. He was asked about Nigel Caris, Allison Redman, Jason Wilson and the appellant Hall and the allegations were put to him but as indicated by his solicitor he chose to say no more. He was re-interviewed after he had been picked out on the identification parade and he then admitted that he did know Mr Caris.
17. Hall was a man with a speech defect. He chose not to answer questions in interview at all. His solicitor made clear that this was because of advice that he had tendered since he considered that the police had not sufficiently disclosed the material in their possession.
18. Each of the appellants gave evidence. Betts said that he had not attacked Mr Caris and that he had not been at the scrapyard but he was unable to say where he had been at the relevant time. He agreed both that he knew Jason Wilson and that his own nickname was "Bettsy".
19. He gave evidence of his knowledge of Nigel Caris, whom he asserted had lived with his grandmother in the same stret as that in which he lived for 7 years. Mr Caris had passed him every day on his way from work and they greeted one another. He could think of no reason why Mr Caris should wrongly implicate him.
20. In dealing with the police interview, he said that he had made no comment because of the advice that he had been given by his solicitor. Once he had been identified by Mr Caris, he had told the police that they knew one another.
21. The parents of Raymond Betts each gave evidence concerning the likely knowledge that Mr Caris would have had of their son, as did a Mr Trevor Simpson. Clearly this evidence and that of Betts himself was to advance the point that the failure of Mr Caris to recognise Betts at the time suggested that Betts was not the second man involved despite the subsequent identification.
22. Hall also denied being involved in any assault on Nigel Caris. He said that although he knew both Jason Wilson and Alison Redman, he did not know who Mr Caris was before seeing him at court. He said that he had seen Alison Redman kissing a man other than Jason Wilson on one occasion and had told Jason about this, but he had not recognised the man.
23. Hall said that he had suffered from a speech impediment throughout his life. He was asked if he could say the words "He's all yours, Bettsy" and he said that he could not. When asked to try, he gave a demonstration of his inability. The Crown accepted that he had a speech impediment but contended that he was grossly exaggerating it and that the demonstration was to say the least wholly unconvincing. Hall said that, in any event, he always called Betts "Ray" because of his inability to say "Bettsy".
24. As to the interview, he said that he had been given advice not to answer the questions but that he would have been unable to answer the questions in any event because of his speech impediment.
25. Hall advanced an alibi for the relevant time and called witnesses in support.
26. A number of grounds of appeal were raised before us but only one impressed us and we deal with that matter first. It relates to the judge's directions to the jury on the failure of the appellants to mention in interview matters upon which they subsequently relied at trial. A number of distinct complaints have been made and it will be necessary to examine in some detail the whole of that direction, which was quite lengthy.
27. Having set out the facts relating to the interviews in which the appellants did not answer questions, the Judge continued:

"Now, first of all, ladies and gentlemen, the Defendants do have a right of silence . As I have explained to you, it is for the Prosecution to prove this charge, the burden always rests on them, it is not for the Defendants to prove anything and they are perfectly entitled, in a criminal investigation and in a criminal case, to remain silent throughout and require the Prosecution to prove its case against them. That is how our system works. Simply because people decline to answer questions, you do not assume they are guilty, just because that is what they have done. That would be, as you can no doubt see, an unfair and oppressive way to approach it. Failing to answer questions, on its own cannot prove that a person is guilty of an offence. However, if you were sure that, regardless of this failure to answer questions, there was, in fact, a case against these two Defendants – and you must be sure of that first – you then are entitled to look at the position in this way. First of all, you may recall that the officer cautioned these two young men at each one of the interviews, and told them first of all that they were not obliged to answer questions, which is right; but secondly, and this is the current state of the law in relation to this, they also told them that it may harm their defence if they do not mention in interview something which they later rely on in court. They were each told that, on each time they were being interviewed, and those words are intended for a purpose. They are intended to warn a defendant that if he or she has some sort of explanation in relation to the charge that can assist in relation to it, which he is later going to rely on when it comes to court, well then he should mention it at the interview stage as well, each of the Defendants are told that"

28. No complaint is made about the direction up to that point nor realistically could such a complaint be made. The Judge then went on to identify the matters relied upon and not mentioned. He said:

"So you may ask yourselves, ladies and gentlemen, well what was it that they now rely on in court. Well I cannot give you a list of all the things that they have relied on in court, because it would be a rather long list, but I can highlight, I think five things in particular which they now rely on in court, none of which were mentioned in any interview. First of all, that the Defendant Mr Betts says that he knows Mr Caris well, and that Mr Caris knows him and that Mr Caris would recognise him. Now that is a fact Mr Betts now relies on in court. Secondly, in the case of Mr Hall, he relies on the fact that he does not know Mr Caris, and that Mr Caris does not know him, and that, therefore, there can have been no recognition between Mr Caris and Mr Hall. That is another fact which Mr Hall relies on, again not mentioned in interview. Thirdly, Mr Hall relies on the fact now, does he not, that he knows a man called Jason Wilson. He knows that Mr Caris was Jason Wilson's best friend, and he knows that Mr Caris had an affair with Jason Wilson's wife, Mrs Wilson. Again, he relies on those facts in his defence, but he did not mention them in any interviews. Fourthly, there is, is there not, a connection between both these Defendants and Messrs. Caris and Wilson, because Mr Hall is friendly with Mr Betts, and Mr Hall knows Jason Wilson and he knows of the relationship between Jason Wilson's wife, and Mr Caris. So there is a connection between, as Mr Graham put it, the four players in this case, and that connection again was not mentioned in any interviews. Fifthly, it is also relied upon by the Defence, or suggested by the Defence now, that Mr Caris has a grudge against Hall, because Mr Hall it was who tipped Mr Wilson about the affair, and has a grudge against Hall, and indeed his friend Mr Betts, and is falsely alleging he was assaulted by them in the Century Salvage yard. That is the defence case now. Again that was not mentioned in the interviews which you have got before you. The Prosecution say simply, ladies and gentlemen, that the Defendants declined to reveal all these matters which they now rely on, because they wanted to hide the connection between them and Mr Caris and Mr Wilson in the hope that and that they the Police would never discover any connection between them and Mr Caris and Mr Wilson and that they did that because they are guilty of this assault and that there can be no other logical reason why they should behave in that way. That is what the prosecution say about it, and that is the inference that they ask you to draw from their failure to answer these questions."

29. The first criticism that is made of that passage is that each of the five "facts" mentioned by the judge may have appeared to the jury to be said to be something relied upon by each appellant and that there was a duty to identify the facts relied upon by a particular appellant and not in any sense combine them together in a single list. We are not impressed by that criticism. When dealing with each fact the judge started by identifying the appellant to whom it related, no. 1 to Betts and the other four to Hall. We accept that it might have been better to draw a sharper distinction and that in respect of the fifth fact, it is not clear whether the judge is intending to say that that was a fact relied upon by Betts as well as Hall. However, if that criticism stood alone we would not consider any resulting conviction unsafe.
30. The next criticism is that the judge told the jury that he could not give them "a list of all the things relied on in court, because that would be rather a long list". It is said that that overstated the position and that in any event, there was a duty on the judge to identify matters that can properly be said to be relied on and not mentioned at interview in case the jury were to include wrongly in their consideration matters that could not be said to be relied upon. We can see some merit in that argument but again taken alone we would not consider that a sufficient basis for concluding that the convictions were unsafe. The judge identified the five "facts" that he suggested were the most important and it is very difficult to believe on the facts of this case that the jury would not draw an inference based upon these matters but would do so in respect of some distinct matter that they wrongly identified..
31. The next criticisms are directed to the list of five "facts". As to the first fact relevant only in the case of Betts, namely that he and Mr Caris knew each other well so that Mr Caris would have recognised him if he had been involved. This was undoubtedly a fact relied upon by Betts at his trial. The complaint, however, is made that the judge should not have listed it under the heading of facts that had never been "mentioned in any interview". Betts had asserted this fact in his final interview following his being identified on the identification parade. It would still have been correct to make clear that it had not been mentioned at the earlier interviews, and that it was open to the jury to conclude that he had not thought of this line of defence until he had been picked out on the parade, but it was wrong to classify it as a fact that had not been mentioned at all in interview. That criticism is a legitimate complaint.
32. The second "fact", which related to Hall, was that Mr. Caris did not know him, and that therefore there could have been no recognition. It is argued that that is not in any sense a fact relied upon by the defence but rather a bare denial of a fact relied upon by the prosecution as a plank of its case. We do not consider that that is a valid criticism. The appellant was asserting that he and Mr. Caris did not know one another. That, if true, is a fact. The jury were entitled to conclude that that was a fact that he could reasonably be expected to have mentioned when the allegation was put to him, provided that they had had proper regard to any explanation that he had advanced.
33. The third "fact" said to be relied upon was that Hall knew Jason Wilson, knew that Mr Caris was Jason Wilson's best friend, and that he knew that Mr Caris had a relationship with Jason Wilson's wife. Criticism is made of the inclusion of that "fact" on two grounds. First it is said that this was not a "fact" relied upon by Hall, each element was a fact relied upon by the Crown as a part of its case to explain the motive of Hall in attacking Mr Caris. All that Hall had done was to admit a part of the prosecution case and not to rely on any distinct fact in this regard. Again we think that there is validity in this argument. A bare admission cannot be said to be the assertion of a fact. Where explanation for the admitted fact is advanced by reliance on other facts, those facts may give rise to the drawing of an inference if not mentioned in interview but not the admission by the defendant of the fact relied upon by the Crown. By way of example, if a defendant were to admit for the first time at trial that a fingerprint was his but say he could offer no explanation for it being found where it was, he would have relied on no fact. No doubt, he would have preferred in the conduct of his case for there to be no mention of the fingerprint. His concession that it was his has added no fact to the case. If though, he put forward for the first time an explanation for the finding of the fingerprint that would be very different.
34. We consider that this interpretation of section 34 of the Act is manifest from the wording of the section. Even if we were wrong, the section would now have to be interpreted, pursuant to section 3 of the Human Rights Act 1998, so as to be compatible with the rights contained in the European Convention of Human Rights. The drawing of an adverse inference from silence may infringe Article 6 of the Convention. The issue whether it does or does not is one of whether an appropriate balance has been drawn between the exercise by an accused of his right to silence and the fair drawing of an adverse inference by the jury (see e.g. Condron v United Kingdom Application no. 35718/97, European Court of Human Rights). To hold against a defendant that an inference could be drawn against a person who did not make an admission in interview but made it at trial would effectively be to remove his right to silence. There is good reason to limit the right to silence where positive assertions are to be made at trial, provided the suspect is given an appropriate warning, so that those assertions can be investigated and tested and the jury can have the benefit of the prosecution's informed response to the assertion. However, no similar considerations can apply to a bare admission. Accordingly the balance between the defendant's right to silence and the drawing of adverse inferences must prevent such inferences being drawn where there is no more than an admission of a fact asserted by the prosecution.
35. Further criticism is made in respect of the third "fact" on the judge's list, namely that factually it was wrong. Hall's evidence was that he did not know Jason Wilson before he saw him at court and that whilst he knew Jason Wilson and knew of his wife's infidelity, he, at the relevant time, i.e. during the interviews, did not know that the other man involved was either Mr Caris or "Jason Wilson's best friend". The passage confuses subsequent knowledge with matters known at the time of the interview. Again the criticism would seem to have justification.
36. The fourth "fact" is attacked as being no more than an admission of aspects of the prosecution case and not in any sense a fact that was relied on by Hall. Again this seems to be correct.
37. The assertion that Mr Caris had a "grudge" against Hall (the fifth "fact") was a matter in which a fact was being relied upon, but it is said that nowhere did the judge make it clear that Hall could only have been expected to mention that fact at interview if he had the evidential material available to him that led him to conclude that Hall did have such a grudge. That was something Hall had denied by his evidence since he asserted that he did not then know the identity of Mr Caris.
38. It seems to us that these errors and the inclusion as "facts" relied upon of matters that could not properly be included would in themselves call into question the safety of the conviction and would, if they stood alone or with just the matters to which we have earlier made reference, have required anxious consideration before we could have concluded that the conviction was safe. However, a further attack is launched upon the remaining parts of the directions in this regard and this we have had to consider.
39. After the passage already quoted in paragraph 28 of this judgment, the judge went on to deal with the explanations for their silence advanced by each appellant. He said:

"Well the defendants say that that, first of all, is not the right inference to draw. Secondly, that there were, so far as they are concerned, good reasons, or valid reasons, why they did not answer questions in interview. First of all, they said their solicitors, or legal representatives, advised them not to answer these questions, on the grounds of there having been inadequate disclosure of the facts of the offence. Secondly, it is advanced, is it not, by Mr Hall that he finds it quite difficult to answer questions anyway, because he has a speech impediment. Well, first of all, ladies and gentlemen, the Defendants are not entitled to shield behind their solicitors' advice. They are both, as it were, adults and grown men and it is for you to consider whether they were able to decide for themselves what to do when being questioned about these matters. It was for them to decide, having received advice from their legal advisors, as to whether they ought to accept that advice, or whether they should not. You are not concerned to decide, I may say, whether you think the solicitors' advice was right or wrong, or whether it was good or bad, but you are entitled to consider the reasons that have been advanced. It was suggested that the reason that this advice was given, and the reason the Defendants did not answer questions, was because they had not had adequate disclosure of the facts of the case. Well, seeing as that reason has been advanced to you, you are entitled to consider that. They had had disclosure that they were suspected of an offence at a particular time, a certain time on the 25th January, that it occurred at a certain place, that it took the form of an assault by two men on to one, that the victim was a man called Nigel Caris. You may ask yourselves, well was that an adequate disclosure to enable them to answer the questions, what more did they really need to know, if that was what they are being charged with. Say the Crown, well could they not have just told the truth and said, well yes we know these people but we do not know anything to do with this offence. So, as I say, it is for you to consider, ladies and gentlemen, whether those are valid reasons. Now similarly, in the case of Mr Hall, he says that he found it difficult to answer questions, by reason of his speech impediment. Well you have seen him give evidence, and you have seen what the nature of his speech impediment is. It is for you to decide what the nature of his speech impediment is, it is for you to decide whether that is a valid reason for not answering questions in the police station. If you consider that the reasons advanced by these Defendants are valid reasons why they should refuse to answer questions, then you may not draw any adverse inferences against them. It would not, obviously be right to do so if they have, in your judgment, a good reason or a valid reason not to answer these questions, then do not draw any adverse inferences against them, and simply ignore the fact that they have not answered these questions. If, on the other hand, you take the view that the reasons advanced are not valid in your judgment, and it is your judgment that matters about this, and that they have failed to provide an adequate explanation in relation to this matter, well then you may draw such inferences from that as you think are correct. You ask yourselves, what is an inference, or what inferences should we draw. Well, again I go back to what the Prosecution suggest you should draw as your conclusion, namely that they wanted to hide the truth and they wanted to hide the connection between the four main players in this case, and that that is, say the Prosecution, the action of guilty men who have committed this assault. If you agree that is the proper inference to draw, then you draw it. If you do not think it is the proper inference to draw, well then do not. It is your decision."

40. A number of criticisms are advanced about that passage but at the heart of each is the complaint that the direction misled the jury as to the approach that they had to adopt to the reasons given by the defendants, particularly in respect of the advice given by their legal representatives. Reliance is placed upon the decision of the European Court of Human Rights in Condron v United Kingdom , [2000] ECHR 191 and the decision in relation to the same matter of this court, Condron and Condron [1997] 1 Cr App R 185, [1996] EWCA Crim 1129.
41. In Condron and Condron, the Court of Appeal considered the guidance given by that Court as to the proper directions to be given to a jury in respect of a defendant's failure to give evidence at trial in Cowan, Gayle and Riccardi [1996] 1 Cr App R 1, at page 7C. In the latter case Lord Taylor CJ giving the judgment of the court included as the fifth of five "essentials" in such a direction:

"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."

42. In Condron and Condron, Stuart-Smith LJ giving the judgment of the court concluded at page 195A:

"Having regard to the view of this Court in Cowan, we consider that it is desirable that a direction on the lines indicated above should be given. There is as much need to remind the jury of the circumstances in which a proper inference can be drawn under section 34 as under section 35."

43. Notwithstanding this view the Court in Condron and Condron concluded at page 195C that the convictions in that case were not unsafe despite the absence of such a direction in the light of the strength of the evidence in that case.
44. The Judicial Studies Board responded to the view expressed by the court in Condron and Condron and in the case of Argent [1997] 2 Cr App R 27 by redrafting its Specimen Directions. Included as part of the new directions was:

"There is evidence before you on the basis of which the defendant's advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so. That evidence is […]. If you think that this amounts to a reason why he should not hold the defendant's failure against him, do not do so. On the other hand, if it does not in your judgment provide an adequate explanation, and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him."

45. These directions were available to the trial judge in the case we are considering. The complaint that is made is that nowhere did he make it clear that inferences could only be drawn if the jury were "sure that the real reason … was that he had no innocent explanation to offer".
46. The necessity for such a direction was considered by the European Court of Human Rights in Condron v The United Kingdom on an application relating to Condron and Condron. Having reviewed the history of the matter and referred to the Specimen Direction the relevant part of which we have quoted above, the Court considered whether the absence of such a direction led to the conclusion that the applicants had not had a fair trial pursuant to Article 6.1 of the Convention. At paragraph 57 of its judgment, the Court said:

"… the fact that the applicants' exercised their right to silence at the police station is relevant to the determination of the fairness issue. However that fact does not itself preclude the drawing of an adverse inference …. Similarly, the fact that the issue of the applicants' silence was left to a jury cannot of itself be considered incompatible with the requirements of a fair trial. It is, rather, another relevant consideration to be weighed in the balance when assessing whether or not it was fair to do so in the circumstances."

47. At paragraph 61 of the judgment, the Court continued:

"It is to be noted that the trial judge directed the jury on the issue of the applicants' silence in accordance with the terms of the relevant specimen direction at the time … The Court notes, however, that the formula employed by the trial judge cannot be said to reflect the balance which the Court in its John Murray judgment sought to strike between the right to silence and the circumstances in which an adverse inference may be drawn from silence and the circumstances in which an adverse inference may be drawn from silence, including by a jury. It reiterates that the Court stressed in that judgment that, provided appropriate safeguards were in place an accused's silence in situations which clearly call for an explanation, could be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution against him. The Court further noted, with reference to Articles 4 and 6 of the Criminal Evidence (Northern Ireland) Order 1988, that those provisions only permitted a judge to draw common-sense inferences which he considered proper in the light of the evidence ….. However, in the instant case the applicants put forward an explanation for their failure to mention during the police interview why certain items were exchanged between them and their co-accused, Mr Curtis …. They testified that they acted on the strength of the advice of their solicitor who had grave doubts about their fitness to cope with police questioning … Their solicitor confirmed this in his testimony in the voire dire proceedings. Admittedly the trial judge drew the jury's attention to this explanation. However, he did so in terms that left the jury at liberty to draw an adverse inference notwithstanding that it may have been satisfied with the plausibility of this explanation. It is to be observed that the Court of Appeal found the terms of the trial judge's direction inadequate in this respect …. In the Court's opinion, as a matter of fairness, the jury should have been directed that it could only draw an adverse inference if satisfied that the applicants' silence at the police interview could only sensibly be attributed to their having no answer or none that would stand up to cross-examination. (Our emphasis added)"

48. Whilst we understand that the reference to cross-examination is taken directly from Cowan, it is with respect to the European Court more appropriate to a case under section 35 of the Act dealing with silence at trial than to a section 34 situation where the silence is at police interview, where it might more appropriately be replaced by reference to "questioning and investigation".
49. The Court in Condron v The United Kingdom, then considered the Court of Appeal's conclusion that the conviction was safe notwithstanding that it thought that it was "desirable" that such a direction should have been given. At paragraph 66, it concluded:

"However, in the case at issue it was the function of the jury, properly directed, to decide whether or not to draw an adverse inference from the applicant's silence. Section 34 of the 1994 Act specifically entrusted this task to a jury as part of a legislative scheme designed to confine the use which can be made of an accused's silence at his trial. In the circumstances the jury was not properly directed and the imperfection in the direction could not be remedied on appeal. Any other conclusion would be at variance with the important fundamental importance of the right to silence, a right which, as observed earlier, lies at the heart of the notion of a fair procedure guaranteed by Article 6. On that account the Court concludes that the applicants did not receive a fair hearing within the meaning of Article 6.1 of the Convention."

50. Section 3 of the Human Rights Act 1998 requires the Court "so far as it is possible to do so" to "read and give effect to" "primary legislation" "in a way which is compatible with the Convention rights". Section 2 of that Act requires the Court in "determining any question which has arisen in connection with a convention right" to "take into account any judgment … of the European Court of Human Rights".
51. Giving effect to those statutory requirements, it seems clear that section 34 of the Act has to be interpreted, if possible, in a way which is compatible with a defendant's convention right to a fair trial under Article 6.1 and that this court is bound to take into account the view of the European Court of Human Rights that a direction that left "the jury at liberty to draw an adverse inference notwithstanding that it may have been satisfied as to the plausibility of the explanation" amounted to a breach of Article 6.1.
52. In the current Specimen Direction of the Judicial Studies Board, quoted in Condron v The United Kingdom without apparent adverse comment, that requirement is met by instructing the jury that they can only draw an adverse inference if they are "sure that the real reason for his failure to mention (the) fact was that he had no innocent explanation to offer in relation to this aspect of the case".
53. That particular direction is not the only way in which the necessary requirement may be brought home to the jury and, therefore, since the judge did not give this part of the specimen direction in the summing up we have had to consider whether the jury may have been left understanding that they could draw an inference when they should not. In the passage that we quoted at paragraph 39 of our judgment, the judge made repeated references to valid reasons and adequate explanations. These and the whole of this passage would seem to be inviting consideration by the jury of the quality of the decision not to answer questions made by each appellant. In the light of the judgment in Condron v United Kingdom it is not the quality of the decision but the genuineness of the decision that matters. If it is a plausible explanation that the reason for not mentioning facts is that the particular appellant acted on the advice of his solicitor and not because he had no or no satisfactory answer to give then no inference can be drawn.
54. That conclusion does not give a licence to a guilty person to shield behind the advice of his solicitor. The adequacy of the explanation advanced may well be relevant as to whether or not the advice was truly the reason for not mentioning the facts. A person, who is anxious not to answer questions because he has no or no adequate explanation to offer, gains no protection from his lawyer's advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts.
55. In the instant case, we were of the view that the jury may have failed to appreciate on the directions given that they could only draw inferences against the appellants if they were sure that their failure to mention facts was not merely a result of the advice, however adequate or inadequate that explanation might be, and could only do so if they were sure that the particular applicant had not at that stage any explanation to offer or none that he believed would stand up to questioning or investigation.
56. On this ground, and also having regard to the other inadequacies to which we have referred in respect of the direction on section 34 of the Act, we concluded that the resulting convictions were unsafe and must be quashed.
57. We are very conscious that directions pursuant to section 34 of the Act are never easy for a trial judge, particularly where reliance is placed on legal advice. In those circumstances, it may be helpful if we set out the sort of direction on this aspect of the case that we believe would have been appropriate in the case:

"Each defendant has told you that he did not answer questions because he was advised by his solicitor that he should not do so as the police had not sufficiently disclosed the information that was available to them. It is not what the solicitors thought that matters. It is what each defendant thought. A person has the choice whether to accept advice or reject it. From the warning that was given at the beginning of each interview, the defendants were aware of the possibility that any failure to mention matters upon which they relied might harm their defence at their trial. You have to take those circumstances into account, along with all the other circumstances including in the case of Betts his age and in the case of Hall the extent of his speech impediment as you find it to be, in deciding whether each defendant could reasonably be expected to mention at that stage those matters upon which he subsequently relied. If you think in either case that the reasons that the defendant gave may be the true explanation for his failure to mention these matters, then you may not hold his failure against him nor draw any adverse inference from the failure. If, on the other hand you are satisfied that the true explanation for either defendant's failure is that he did not at that time have any answer to the allegations that were being put to him, or that he realised that such explanation as he had would not at that stage stand up to questioning or investigation by the police and that the advice of the solicitor did no more than to provide him with a convenient shield behind which to hide, then and only then can you draw such inferences as you consider proper from his failure."

58. There were other grounds of appeal. None of them raised any point of principle nor in our judgment did any of those other matters cause us to conclude that the convictions were unsafe. In view of our conclusions set out above we can see no useful purpose in setting out these other grounds or our reasons for rejecting them.
59. For the reasons which we have sought to explain we allowed these appeals and set aside the convictions.