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Cite as: [2001] EWCA Crim 2643

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DALY, R v. [2001] EWCA Crim 2643 (23rd November, 2001)

		Neutral Citation Number: [2001] EWCA Crim 2643
		Case No: 2000/7383/W2

Royal Courts of Justice
Strand, London, WC2A 2LL

23rd November 2001

B e f o r e :

LORD JUSTICE KENNEDY
MR JUSTICE BELL
and
MR JUSTICE COOKE
____________________

R R
v
Andrew Daly

____________________

(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)

____________________

Mr T. Fitzpatrick (appeared for the appellant)
Mr W. Baker (appeared for the Crown)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Kennedy :

On 22nd November 2000 in the Crown Court at Manchester this appellant was convicted of one offence of robbery and was sentenced to six years imprisonment. He had pleaded guilty on the first day of his trial to the lesser offence of theft, but that plea was not accepted by the Crown. He now appeals against conviction by leave of the single judge. In addition, at the end of the hearing before us, counsel on his behalf renewed his application for leave to appeal against sentence.

It was the prosecution case that on the afternoon of Thursday 8th June 2000 the appellant entered the kiosk at Mesnes’ Garage, Ashton New Road, Clayton, Manchester and robbed the cashier, Lorraine Armitage, of a quantity of telephone top-up cards and cash. She said that the appellant entered at 2.55 pm. He asked her if she sold top-up cards and she said that she did. She turned to look at the cards and asked what type he wanted. She then realised that he was standing to her left side, no more than an inch from her. He shouted in an angry tone “don’t fucking move, or I will stab you.” She stood rigid. He had his left arm inside his jacket. She thought that he had a knife. She tried to look at him, but he shouted “don’t look at me”. He reached up, and took the phone cards and shoved them under his left arm. He then said “open the fucking till”. That was said quickly, aggressively, and quite loudly. She knew, however, that the till was already open. He reached in and took some cash in Ł5, Ł10 and Ł20 notes. She said that she was terrified. The appellant then left and she pressed the alarm button as he did so. Another male who had been standing at the door ran ahead of him. She told a taxi driver who had pulled into the forecourt that she had been robbed. The driver proceeded to get back into his car and followed the appellant. She did not mention in her statement that the appellant had his left arm in his jacket. That was only said in evidence. She explained the omission by saying that she had given her statement on the day of the incident when she was still terrified. She had not told the taxi driver that the appellant had a knife before he followed the appellant. The whole incident was recorded by a security camera, and based on still photographs from the video footage the prosecution contended, and the appellant denied, that the second man who was present had acted as a look out.

Later that same day the police attended the appellant’s home not far away, where they recovered a quantity of top-up cards from under the carpet in a bedroom. The appellant was arrested on suspicion of robbery and said “I’m going to fucking kill that fucking Scott Rowell”. Some cash was also found but there was no evidence to link it to the robbery. The video film gave no indication as to whether or not the appellant had taken cash. When interviewed the appellant made no comment. At trial he said that he had relied upon the advice given him by his solicitor not to comment. However in a defence statement served in August 2000 and subsequently at trial the appellant admitted that he had entered the kiosk and stolen a quantity of top-up cards. He denied that he made any threat of violence, either verbally or physically, to the complainant and denied that he had stolen any cash. He said that he had entered the garage with the intention of buying a mobile phone top-up card and whilst there he saw an opportunity to steal the cards from the shelf. When he entered he told the lad who was with him to hold the door. When he told the complainant the type of card he wanted she turned to get one from the shelf, he lifted the counter hatch and grabbed two bundles of cards. He was behind the counter for a matter of seconds. He did not threaten to stab her. He saw the till but did not take anything from it. He was not willing to disclose the name of the man who was with him. When arrested he referred to Scott Rowell because he believed that that man, who had left his house two minutes before the police arrived, had informed on him.

At the conclusion of the evidence, in the absence of the jury, following submissions from both sides, the trial judge ruled that the case was appropriate for a direction pursuant to section 34 of the Criminal Justice and Public Order Act 1994. In his closing speech counsel for the Crown then submitted that the appellant might reasonably have been expected to have mentioned that he had neither threatened nor used force towards the complainant, and argued that his failure to do so suggested that he had either tailored his defence to fit the prosecution case, or knew that his account would not stand up to scrutiny.

When he came to direct the jury the judge said –

“There is another aspect of this case in relation to which I have to give you a direction, and that is in relation to the defendant’s failure to say after caution and in the interview a fact on which he now relies. The fact on which he now relies is that though he stole, he did not in fact threaten violence. That is his case. He never said that in interview. .... The caution now is you need not say anything, and that remains the law.... No man or woman is required to incriminate themselves, that is the law, but it may harm your defence, a man is now told and was told here, may harm, not will, may harm your defence if you do not mention something when questioned which you later rely on in court, and anything you do say may be given in evidence. So the addition now is it may harm your defence if you do not mention something when questioned which you later rely on, and what the prosecution submit to you is that he failed to say when interviewed, and he agrees he failed to say, he gives a reason and I will mention that to you in a minute, that he was there and stole but was not a robber. The prosecution say in this case that having regard to that warning which he was given that it might harm his defence, if it was true that though he was there he never robbed and did not use force.... he could reasonably have been expected to mention it then, and as he did not do so you can properly look at it as an invention tailored to fit what he now knows to be the prosecution case, or believed that if he said that it would not stand up to scrutiny. Now in fact that is what the prosecution are saying. They are saying here that he never said in interview, but later on when he saw the video he realised the difficulties he was in. He realised that the combination of being recognised on the video, and the evidence is that an officer who knows him from the locale, who lives near him, recognised his face, but he could see the video, the prosecution say, coupled with the cards which can be and have been identified as identical ones. .... The combination of the cards and the video meant that he was bang to rights as far as being there and taking something was concerned, and they are saying that now he is admitting it. In fact you have been told that he admitted theft sometime ago. In fact it was by a notice in August of this year that was sent to the court in which he admitted being a thief, but denied being a robber. Now you have to decide, bearing in mind that challenge which is made by the prosecution to him because he did not mention it, you have to decide whether in all the circumstances it is something which he could reasonably have been expected to mention at the time, and if it was, you may draw such inferences as you think are proper and should he mention it? Is it reasonable in all the circumstances for him to say ‘Yes, I did take the stuff, but I was not the robber.’ Now you have to remember this when you are considering these things. His failure to mention that, as he admits was the case, cannot prove his guilt. It can only at best support the prosecution case, if they have got a case, so you have got to look at the rest of the case, particularly of course the evidence, well essentially the evidence of Mrs Armitage, and say ‘is there a case which he has got to answer there?, a case on which you could convict, and then do you find that this failure of his, considering all the circumstances and including his own explanation, supports that case. In other words, it can only be seen at best as additional support. You are not bound to regard it as additional support. Having considered everything, you may decide that it not fair to do so.

The defendant has given you an explanation for why he did not say it. He says that he had a solicitor there and the solicitor advised him not to say anything, and you have got to weigh that up as part of the circumstances in deciding whether you think it was reasonable for him not to have said it, and in doing that you should consider whether or not he is able to decide for himself whether he should say it, having received the advice of a solicitor that he should say nothing.”

Mr Fitzpatrick, for the appellant, submits that the judge was wrong to direct the jury that they might draw an inference pursuant to section 34. Alternatively he submits that the direction given by the judge was inadequate in the circumstances if this case.

As to his first ground of appeal Mr Fitzpatrick submitted that a direction under section 34 is appropriate only where there is material independant of the central issue in the case which can be identified as a fact for the purposes of the direction, but that the direction should not be given where as here the only fact which the defendant failed to mention was a critical ingredient which the prosecution had to prove to establish the offence charged. The omission, identified by the judge, was a failure when interviewed to say that “though he was there he never robbed her and did not use force”. That was simply the admission of part of what was alleged (presence and theft) coupled with a denial of the remaining element necessary to constitute robbery, namely the use of force.

Before we consider the authorities to which our attention has been invited it is helpful to look at the wording of section 34 so far as it is relevant. That section reads –

“(1) Where, in any proceedings against a person for an offence, evidence is given that the accused –

(a) .... on being questioned under caution by a constable ... failed to mention any fact relied 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 .... sub-section (2) below applies.

(2) Where this subsection applies –

(d) the ... jury in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure as appear proper.”

In Mountford [1999] CLR 575 this court considered an appeal by a defendant who in evidence claimed that at the time of a police raid he was present in the premises only as a purchaser, not as a supplier of drugs. He did not give that account of his activities to the police, and his subsequent explanation for not having done so was that he did not want to land his co-accused in trouble. By the time that he came to give evidence the co-accused had pleaded guilty. This court said –

“It is difficult to see how the jury could have rejected the appellant’s reasons for not mentioning ‘the fact’ without also rejecting the truth of ‘the fact’ – the truth of each depended on the truth of the other. In our judgment this element of circularity could only be resolved by a verdict founded not in any way upon the section 34 point but upon the other evidence in the case. A verdict of ‘guilty’ would have obviously established that ‘the fact’ not mentioned was untrue and accordingly that the explanation for not mentioning it was equally untrue. In this case, as it seems to us, the evidence which resolved the section 34 issue was the very evidence which resolved the issue of the case and therefore determined the verdict. There was, in our judgment, no evidential basis upon which the section 34 issue could have been resolved as an independent issue in the case, thus permitting an ensuing adverse inference to be used as some additional support for the prosecution’s case.”

We confess that we find that reasoning difficult to follow. We accept that the fact not mentioned was closely related to the issue in the case, but we can find nothing in the statutory wording which requires that the section 34 issue be capable of resolution as a separate issue in the case. It seems to us that on the statutory wording it is open to the Crown to say that if a defendant was only involved to the limited extent that he now contends why did he not say so to the police, his limited involvement being a fact now ‘relied on in his defence’ to explain evidence which he is unable to challenge? An admitted fact is just as much a “fact relied on” for the purpose of the section as a fact which is extraneous to the prosecution case. It may well be that the inference which could be drawn from the failure to mention a fact which is an ingredient in the prosecution case (but is later relied on by the defence) is likely to be weaker than the inference which could be drawn from a failure to mention some suggested fact which implies complete innocence. This is because of the more likely possibility in the former case of some explanation which does not suggest guilt on the charge in question [e.g. reluctance to admit to any wrongdoing or a lesser offence], but this point goes not to the question of the applicability of a section 34 direction, but to the form of the direction given, with which the second ground of appeal is concerned in this case.

In R v Hearne and Colman, 4th May 2000 unreported, a differently constituted division of this court said –

“Section 34 is designed, in part at any rate and perhaps principally, to deal with the sort of situation which not infrequently arises where a defence is advanced which has never been previously indicated even though there was sufficent opportunity to do so, as from the provisions we have read make clear would be the case where there has been an interview under caution. It is to allow the jury, in a proper case subject to safeguards, to draw an inference from the fact that the defence advanced at trial has not been previously entered, the obvious inference being in many such cases that it was or is a sprung defence, that is a recently made up or improvised defence. It is not the truth or otherwise of the explanation which is the chief concern of the jury, it is the fact that it has not been mentioned previously which may in an appropriate case allow the jury to draw an inference that it is a recent invention, thus assisting the jury to its ultimate conclusion as to whether or not the explanation offered at trial is true or false.”

We respectfully agree. In the case of Hearne the court went on to say that –

“It seems to us that the case of Mountford was concerned with its own very particular facts and is not necessarily to be considered to have a general application when the appropriateness or otherwise of a section 34 direction is being considered.”

However, in R v Gill [2001] 1 Cr App R 160, where the facts were very similar to those in Mountford, that earlier decision was followed without any reference to the subsequent decision in the case of Hearne. At page 163 Bracewell J, giving the judgment of the court, said –

“There are cases where it is inappropriate to give a direction under section 34 because the drawing of an inference under the section will depend upon the making of findings which the jury cannot properly make unless they are sure of the defendant’s guilt independently of the section.”

Here again we find the reasoning difficult to follow when related to the words of the statute. If there is a clear prima facie case against the defendant why should a properly directed jury not look to the defendant’s failure to give his present explanation at an earlier stage to assist them when deciding whether or not that explanation can be accepted? In the present case the prosecution submission was that when the appellant saw the video film he realised that he could not contest with any prospect of success that which the film showed, namely his theft of the top-up cards. He therefore embarked upon a damage limitation exercise, the unreliability of which was demonstrated by his failure to adopt the same stance at an earlier stage when interviewed. That, in our judgment, was a submission which the judge, pursuant to section 34, was entitled to permit the jury to consider, and we therefore reject the first ground of appeal.

Turning to the second ground of appeal, we accept that if the jury was to be permitted to draw an inference a careful direction was required, for two interrelated reasons. First, there were matters on which the appellant was entitled to rely to explain the silence at interview, despite the form of the caution administered to him. At that stage he had not seen the video film, he was therefore unaware of the full weight of the prosecution case against him, and in the light of his solicitor’s advice he may have been understandably reluctant to admit a lesser but still serious offence. That made it particularly important in this case for the judge to say to the jury that they should only be prepared to draw an adverse inference if satisfied that the only sensible explanation for the appellant’s failure to give in interview the explanation which he gave in his defence statement and at trial was that at the time of the interview he had no answer to the charge, or none that would stand up to questioning and investigation. It was important that the jury be not left at liberty to draw an adverse inference notwithstanding that it may have been satisfied with the plausibility of the appellant’s explanation for his silence (see Condron v UK [2001] 31 EHRR 1 at paragraph 61 and Betts and Hall [2001] CLR 754 at paragraph 48). In the present case, when setting out the appellant’s explanation for his silence at interview, the judge did not refer to the potential difficulty of admitting a lesser offence, perhaps because that was not referred to in evidence or in argument, and, more significantly, the judge did not warn the jury in the way that we have indicated as to the limited circumstances in which an inference might be drawn. On the contrary he invited the jury to consider whether in all the circumstances the appellant “could reasonably have been expected to mention” his limited involvement at the interview stage. Mr Baker, for the respondent, submitted that the warning was implicit in all that the judge said, but in our judgment that cannot be right having regard to the words used. Accordingly we find that the direction given was inadequate, and as we have no means of knowing the extent to which it affected the determination of the jury we cannot regard the conviction as safe.

We must therefore allow the appeal, set aside the conviction for the offence of robbery, and substitute for it a conviction for the offence charged in count 2 to which the appellant offered a plea of guilty, namely the offence of theft. Even on the appellant’s version of events this was a serious matter. It was a brazen theft, it was likely to and did frighten Mrs Armitage. It was committed in company with another man by an appellant who is now 29 years of age and who has many previous convictions for offences of dishonesty. Allowing for the plea which he tendered we consider that the right sentence in his case for the offence of theft is one of three years imprisonment, and that sentence he must now serve as if it had been imposed at the Crown Court by the trial judge.

- - - - - - - - - -

LORD JUSTICE KENNEDY: For the reasons set out in the judgment which has been handed down and made available, this appeal will be allowed.

The conviction for the offence of robbery will be set aside and there will be substituted for it a conviction for the offence charged in count 2, to which the appellant offered a plea of guilty, namely the offence of theft.

So far as sentence is concerned, for the reasons again set out in the judgment, which has been handed down, the sentence in respect of that offence will be one of 3 years' imprisonment. That sentence to be served as if it had been imposed by the Crown Court, on the date that this appellant was tried.