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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Turnbull, R v [2001] EWCA Crim 2244 (30th October, 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/2244.html
Cite as: [2001] EWCA Crim 2244
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TURNBULL, R v. [2001] EWCA Crim 2244 (30th October, 2001)

Neutral Citation Number: [2001] EWCA Crim 2244
Case No: 2001/01486/W3

IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 26th October 2001

B e f o r e :

LORD JUSTICE HENRY
MR JUSTICE DOUGLAS BROWN
and
MR JUSTICE ASTILL
____________________

REGINA

- and -

MARK TURNBULL

 ____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Andrew Peet Esq (instructed for the Appellant)
Mark Hurd Esq (instructed for the Respondent)
____________________

Judgment
As Approved by the Court

Crown Copyright ©
____________________

    Lord Justice Henry:

  1. This is the judgment of the Court. On 16th February 2001 in the Crown Court at Leicester before His Honour Geoffrey Jones and a jury the appellant, Mark Turnbull, was convicted of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act, 1861. On 8th May 2001 he was sentenced to 15 months’ imprisonment. He now appeals his conviction with the leave of the Single Judge.

  2. The facts were simple. The appellant had a young son. A neighbour, Mr Wallace, had a son who complained of being bullied by the appellant’s son. Mr Wallace went to speak with the appellant. The Crown’s case was that when Mr Wallace confronted the appellant, the appellant hit him in the face breaking his jaw. The defence case was that Mr Wallace threw the first punch, and that the appellant acted in self-defence. Each man called his wife to support his account. Thus the credit of the witnesses was central to this case.

  3. The appeal arises out of the fact that, when interviewed by the police, the appellant only answered four questions, his answers to the others being “no comment”. The consequences of his failure meant that he exposed himself to adverse comment and inference under section 34 of the Criminal Justice and Public Order Act, 1994 for not having mentioned on his arrest or interview something which he subsequently relied on in court.

  4. The Judicial Studies Board have published a specimen direction to deal with the complexities of section 34, which in its basic form had the approval of Lord Bingham CJ. The scheme of the present direction as set out in Archbold 2001 (at 15-404) - reads:

    5. “[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence.

    The defendant, as part of his defence, has relied upon [...] (here specify the fact(s) to which this direction applies). But [the prosecution case is] [he admits] that he did not mention this [when he was questioned before being charged with the offence] [when he was charged with the offence] [when he was officially informed that he might be prosecuted for the offence].

    The prosecution is that in the circumstances, and having regard to the warning which he had been given, if this fact had been true, he could reasonably have been expected to mention it at that stage, and as he did not so you may therefore conclude that [it has been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny].

    If you are sure that he did fail to mention [...] when he was [charged] [questioned] [informed], it is for you to decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time. If it was, the law is that you may draw such inferences as appear proper from his failure to do so.

    Failure to mention [...] cannot on its own prove guilt. But, if you are sure that quite regardless of this failure, there is a case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about this matter is true, ie you may take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.

    [There is evidence before you on the basis of which the defendant’s advocate invited 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 this amounts to a reason why you 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 this failure was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him].”

    It will be seen that the jury would find it difficult to pick their way through that section unassisted.

  5. Counsel here jointly invited the judge to give that direction appropriately adapted. He agreed to do so, but failed in his attempt. Forensic archaeology shows that the judge (who responsibly admitted that this was his first encounter with this complicated section) gave an approximation of the direction down to the last paragraph. This approximation would be, in our view, confusing to the jury, and Mr Peet for the defendant has left us with no confidence that they would have understood the judge’s version of this complicated direction. But the position is more serious than that because the transcript makes clear that the last paragraph of the direction was omitted altogether - and that paragraph dealt crucially with the defendant’s case. The defendant had given reasons for why he had made no comment which needed to be identified and considered. If that material amounted to a reason why the jury should not hold his failure against him, then they should not do so. But if they thought it did not provide an adequate explanation, and the real reason was that he had no innocent explanation to offer, then it might be held against him. It goes without saying that we cannot be sure that the jury would have followed the section 34 trail without careful directions from the court.

  6. This is compounded by the fact that, in the course of the trial and in the summing-up a disproportionate amount of time was spent on this question of what was and what was not said to the police, and why. The references to that section 34 issue are scattered throughout the summing-up when all should have been marshalled in one place, and the specimen direction closely followed.

  7. One way or another the failure to comment played a disproportionate part in this trial, with both prosecution, and on one occasion the judge, attacking that evidence. In a case which depended largely on credibility, the appellant deserved the protection of strict compliance with the specimen direction. That was not done, and consequently we are satisfied that the verdict was not safe.

  8. Accordingly, we quash the conviction. As the Crown appreciated, there was no case for a re-trial, as the appellant has served the equivalent of eleven months of his sentence.

© 2001 Crown Copyright

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