England and Wales Court of Appeal (Criminal Division) Decisions

R v. Nigel Malcolm MORGAN [2001] EWCA Crim 445 (28th February, 2001)

Case No: 2000/1089/Z1

Neutral Citation Number: [2001] EWCA CRIM 445

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 28 February 2001

LORD JUSTICE WALLER:

1. On 18 January 2000 at the Central Criminal Court, before Mr Recorder Clegg QC and a jury, the appellant was convicted of attempted rape and unlawful wounding by majority verdicts of 10:2. He was sentenced to 4 years imprisonment for the attempted rape and 9 months imprisonment concurrent in relation to the unlawful wounding, thus his total sentence was one of 4 years imprisonment.

2. Originally his permission to appeal was refused by the single judge, but, albeit out of time, he was granted leave to appeal against conviction by the full court on 6 November 2000.

3. The ground on which he was given leave to appeal related to the Recorder's direction pursuant to s.34 of the Criminal Justice and Public Order Act 1994 (the extent to which adverse inferences may be drawn resulting from a failure to mention a fact when interviewed or charged).

The Facts

4. It was common ground that on 3 July 1999 at about 11pm, following an invitation from the complainant, the appellant visited the complainant at her home address. Both had frequented local pubs together in the past and had engaged in heavy drinking sessions. That evening both of them spent the night drinking whisky. The prosecution case was that the appellant made sexual advances towards the complainant which were rejected. The appellant then, according to the prosecution case, grabbed the complainant and threw her on to a bed causing her to injure her head on the wooden surround of the bed. The appellant then lowered the complainant's clothing and after a failed attempt at inserting his penis into her vagina, he penetrated her anus.

5. The original count 1 of the indictment alleged rape. After a question from the jury relating to the degree of penetration necessary for the verdict of rape, without objection from either counsel, the judge directed the jury that an alternative verdict open to them was one of attempted rape and it was on that basis that the jury brought in a verdict of guilty of attempted rape.

6. The evidence of the complainant was in accordance with the above case. She said that the appellant became drunk and began to make sexual advances which she rejected. According to her he said that he would not stay and she offered to call him a cab. She said that as she was on her way out of the bathroom he grabbed her, threw her into the bedroom, first on to the floor and then on to the bed. She hit her head on the wooden frame. He pulled down her clothing and tried to penetrate her vagina from behind but was unable to do so and so penetrated her anus. She struggled and screamed and as he withdrew she soiled the sheet. He then collapsed either asleep or unconscious. She tidied herself, removed and cleaned the soiled sheet and then phoned for an ambulance. The police were then called. She told the ambulance paramedic that she had been raped.

7. There were some inconsistencies in the evidence that she gave as compared with the statement that she had given to the police, including the circumstances in which she came to have a wound to her head. These inconsistencies were spelt out again in answer to a question from the jury, from pp. 33-35 of the summing up.

8. The paramedic, Anne Bryer, gave evidence that the complainant had told her that she had been raped. According to her the complainant showed her the room where the appellant was supposed to have slept stating that he was still in the house.

9. WPC Emma Chapman, a chaperone officer, also said that the complainant had told her that the appellant had called her by the name of Chelsea and had said that he was sorry. The complainant had told her that she did not know how her head injury had been caused, but that they had had a fight on the stairs. The complainant said that she had been hit with something brown and that it had felt like wood. The complainant told her that the wooden bed frame had caused the bruising to her stomach.

10. Dr Baata Cybulska examined the complainant. The complainant told the doctor that she had injured her head when she had hit her head against the wall as she ran away from the appellant. The head injury was a 3 cm laceration to the left side of the forehead which required 9 stitches.. There were also various scratches and bruises which could have been caused either by a struggle or by falling over. The examination of the anus revealed an area of tenderness around the edge, a few superficial minor abrasions at the back of the opening, and two small purple bruises on the edge, which were consistent with penile penetration but were not diagnostic of it. The injuries were equally supportive of consensual intercourse as with non-consensual intercourse. Furthermore, the injuries could have been caused by constipation.

11. Dr Elizabeth Carter did not examine the complainant but, from examination of the notes of Dr Cybulska, agreed with Dr Cybulska's findings.

12. The appellant gave evidence and claimed that he and the complainant had been involved in a long-standing sexual relationship which included regular vaginal and anal consensual sex. He said that on the night in question he had been drinking in the pub when he telephoned the complainant to see how she was and to ask her out. She refused to go out but told him to come over with some beers. He arrived at about 11pm with a bottle of whisky and both of them sat drinking and chatting. After a visit to the toilet the appellant said that he had a complete mental blackout and the next thing he remembered was the arrival of the police. He denied making any sexual advances towards the complainant and said that if sex did take place on that night then it would have been with her consent because she always consented. He was unable to recollect, but he was confident that had she refused then he would not have persisted. He was unable to remember how the complainant came to be injured.

13. The appellant was arrested by the police in the early hours of the morning of 4 July 1999. He was interviewed 18 hours later. He had access to a duty solicitor who was present during the interview. During the interview the appellant made no comment to almost every question that was asked of him. He had been cautioned in the appropriate way prior to the interview commencing in terms which warned him that he need not say anything, but that it might harm his defence if he did not mention something when questioned which he later relied on in court, and that anything he did say might be given in evidence. He was also given the special warning emphasising the position. Even after the special warning he continued to answer questions with the words "No comment". In particular it was put to him that he had had "no previous sexual relationship at all" with the complainant. In answer to that question he also said "No Comment".

14. At the trial other witnesses were called to give evidence for the defence. John Brown confirmed in his evidence that the appellant and the complainant had been involved in a sexual relationship as he had witnessed them both naked in bed together. David Babb claimed that he had previously had sexual intercourse with the complainant and that she had told him that he could have any type of sex that he wanted.

15. It was thus an important plank of the appellant's evidence at trial that he had had this long-standing and sexual relationship with the complainant, including regular vaginal and anal consensual intercourse. As was clear from the terms of the interview, that was not something that he had mentioned when having the question of a sexual relationship put to him directly.

16. The appellant was of course cross-examined about why he had made no comment to that direct question. His answer was that he had been advised by the duty solicitor not to say anything "because I was still quite drunk". He also told the jury that he was still affected by alcohol and fuzzy-headed but he did not ask the police to postpone the interview. Under re-examination he was asked if he had considered ignoring the advice of the duty solicitor and he replied "No I thought it was good advice".

17. Ninety minutes after the interview it is right to say that when charged the appellant said as follows:-

"I strenuously deny the allegations against me. I visited Andrea Harte on 3 July 1999 at 11pm with her consent. We shared a drink of Teachers whisky in the kitchen. I then went to sleep in her bedroom, as agreed with her. I don't remember being awakened by a policeman some hours later. That is all I can remember. I did not assault her sexually nor did I cause the wound to her head."

According to his evidence the solicitor in that regard had said "You've got to say something when you get charged" and that is why he made the reply to the charge.

18. In the summing up the Recorder dealt with the question whether it was appropriate for the jury to draw inferences adverse to the appellant under s.34 in the following passages, p.14G to 15D:-

"He was arrested at about 3am and interviewed by the police at about 9.30 that night, that is, 18 hours later. He says that he was still drunk then and because he was drunk he was advised to decline to answer any questions. You will want to reflect on that. It was never suggested to the police that he was still drunk at that time and you have not heard from the duty solicitor to confirm the defendant's assertion that he was still under the influence of drink. It would have been highly irregular for the police to interview a suspect while he was under the influence of drink. If it had happened in this case, then no possible criticism can be made of the defendant declining to answer the questions that he declined to answer in interview. You must decide if he was or may have been drunk during that interview."

19. Then at p.16B to 17D the Recorder said:-

"If you reject his evidence that he was drunk and that his solicitor had advised him to remain silent because he was drunk, then his silence is capable of having some evidential weight. The defendant did not mention to the police that he had had a long-standing consensual sexual relationship with Andrea Harte embracing regular anal sex. He had been told that it might harm his defence if he did not mention something when questioned which was later relied upon in court by him and that anything he said would be written down and may be given in evidence.

The defendant relies upon the pre-existing sexual relationship as a central plank of his defence. The prosecution case is that in the circumstances and having regard to the warning which he had been given, if the fact that the pre-existing relationship was true, then he could reasonably have been expected to mention it at that stage and as he did not do so, you may therefore conclude that it has been invented to bolster a false defence.

It is common ground that he never mentioned pre-existing relationship despite a direct question asking him just that. In those circumstances it is for you to decide if 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 an inference as appears proper from his failure to do so. Obviously his silence cannot prove guilt on its own, but if you are sure that quite regardless of his silence there is a case for him to answer, it is something you are entitled to take into account as some additional support for the prosecution case. You are not bound to do so. It is for you to decide whether it is fair to do so or not."

20. The criticism of the above passage is in reality twofold. First, it is suggested that the Recorder failed to deal adequately with the fact that the appellant had been advised by a solicitor. Mr Markham relies on the fact that in R v Argent [1997] 2 CrAppR 27 at pp. 35-36 Lord Bingham, the then Lord Chief Justice, said:-

"the jury is not concerned with the correctness of the solicitor's advice . . . but with the reasonableness of the appellant's conduct in all the circumstances which the jury have found to exist . . .."

The court in that case approved the trial judge's direction on silence arising after solicitor advice which included the following sentence:-

"You will consider whether or not he is able to decide for himself what he should do or whether having asked for a solicitor to advise him he would not challenge that advice."

21. It is suggested that the Recorder's direction in failing to include some passage to the above effect was defective.

22. The second point taken is as follows. It is submitted that the Recorder has omitted an important direction suggested to be appropriate by the Judicial Studies Board standard direction in relation to s.34 and, as submitted by Mr Markham, made compulsory as the result of the view taken in Condron v United Kingdom [2000] Cr.L.R 679 of the decision of the Court of Appeal in R v Condron & Condron [1997] 1 CrAppR 185. The last paragraph of the JSB standard directions reads as follows:-

"[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 this amounts to a reason why you should not hold a 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 the real reason for his 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]. "

The submission is that it is the direction in bold that is missing from the Recorder's direction in the instant case.

23. In order to consider the above submissions it is convenient first of all to set out in full the standard JSB directions contained in Archbold 2001 at 15-404:-

"[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 case 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 do so you may therefore conclude that [it has since 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, i.e. 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 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 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 his 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]."

24. It will be seen that the Recorder in his direction did follow in most respects the above standard directions, albeit putting matters in a slightly different order. Thus no complaint can be made that the jury were not reminded of the caution. Furthermore, it is clear that the defence did rely on something said and did rely in the appellant's evidence on something that had not been divulged when questioned before being charged with the offence. In addition the Recorder made clear that it was the prosecution case that since it was not mentioned at the questioning stage, they could conclude that it had been invented. The Recorder furthermore made it clear that it was for the jury to decide whether in the circumstances it was something which the appellant could reasonably have been expected to mention at the time. Further it was the law that the jury may draw such inference as appears proper on his failure to do so.

25. The Recorder then further warned the jury that the appellant's silence could not prove guilt on its own and made clear that there had to be a case to answer before they could rely on the failure to mention a matter in support of the prosecution case.

26. It was however at the commencement of his direction that he dealt with the last paragraph of the standard direction. The effect of the Recorder's direction at p.15C-D and p.16B-C is to direct the jury that if they thought it was or might have been the case that the solicitor had advised the appellant not to answer questions because he was drunk, then they should not hold this failure to answer against the appellant at all. But, it is clear that the Recorder did not (a) incorporate any further sentence as per paragraph 20 above, and (b) did not go on to give a direction in terms that if the jury did not think that any adequate explanation had been given, they had to be sure that the real reason for the failure was that the appellant had no innocent explanation to offer in relation to the relevant aspect of the case before they could hold the failure to answer against him.

27. Was there a requirement to give a direction that "the jury should consider whether or not the defendant was able to decide for himself what he should do, or having asked for a solicitor to advise him, he would not challenge that advice"? We have a transcript of the judgment in R v David John Milford Court of Appeal transcript 21 December 2000. There are passages in that judgment which are helpful in considering this question. In the direction given in that case the judge had not used the words suggested by Mr Markham to be appropriate as a result of the R v Argent case. Indeed Roman (iv) of the criticisms being made in that case dealt with that factor. Roman (iv) as appears from paragraph 38 of the judgment was:-

"The judge failed to remind the jury that the appellant had elected to make no comment on the advice of his solicitor and to give it appropriate weight: see Condron v UK at para 60."

The judgment deals with that criticism at paragraphs 43-44 in the following terms:-

"43. (iv) It is again incorrect that the judge failed to remind the jury of those circumstances, as is made clear in the passages from the summing-up we have quoted at paragraph 23 and 26 above. So far as concerns the complaint that the judge failed to direct the jury to give appropriate weight to the fact that the appellant had elected to make no comment on the advice of his solicitor, it is noteworthy that the JSB direction eschews any formula or suggestion as to the weight to be attached to any particular failure to advance a fact or explanation at interview, no doubt because the circumstances existing at the time and relied on by a defendant may be infinitely variable and, subject to 38(iii), the inferences which it is proper to draw are in the province of the jury.

44. In that respect, Mr Osborne relies upon the statement in Condron v UK at para 60, that:

"... the very fact that an accused is advised by his lawyer to maintain his silence must ... be given appropriate weight by the domestic court. There may be good reason why such advice may be given. ..."

However, in that case, the ECHR was concerned, and went on to deal with, a situation where there was not merely a bare assertion that the appellant's solicitor had advised that he should not answer questions, but reasons were advanced, namely that the defendants were hard drug addicts, experiencing withdrawal symptoms and their solicitor was called to testify that his advice was motivated by his concern about their capacity to follow questions put to them in interview. The ECHR held that, in drawing the jury's attention to the explanation, the judge did so in terms which left the jury at liberty to draw an adverse inference notwithstanding that it may have been satisfied as to the plausibility of the explanation. In the instant case, there was no more than a bare assertion of the reason for the silence, namely the advice of the solicitor with no further particulars or reason given in the face of questions which were perfectly straightforward and easy, and were asked of a fit and intelligent defendant who, on the basis of his explanation advanced in trial, had no apparent reason for not answering them at the time. Given that the judge had reminded the jury of the appellant's right to silence as contained in the words of the caution, and had reminded them of the (bare) reason advanced, it is not easy to see in what practical manner the judge could or should have directed them as to the `appropriate' weight which they should attach to the appellant's failure to answer".

28. In the instant case the only evidence of advice given by the solicitor was that of the appellant and to the effect that he had been advised not to answer because he was drunk. The solicitor was not called to confirm that that was the advice he had given to the appellant. Nor was there any evidence that the solicitor had advised silence if the appellant was not drunk. The assumption indeed would be that a duty solicitor would advise a suspect that adverse inferences might well be drawn if he failed to give explanations in the interview which he later sought to give at the trial. This thus was not a case in which the appellant was entitled to say that a solicitor was simply advising him not to answer questions.

29. We take the view that the Recorder gave a direction on this aspect which was as favourable to the appellant as it could be, because he appears to have directed the jury that only if they rejected the evidence of the appellant not only that he was drunk, but also that the solicitor had advised him to remain silent because he was drunk, should they give any evidential weight to his failure to answer questions.

Thus we do not think there is anything in the first criticism.

30. The second is more difficult. A somewhat similar criticism was also made in the Milford case but it is of relevance as to the way the criticism was made and as to the way it was dealt with. The criticism was Roman (v) in paragraph 38 which read as follows:-

"He failed to remind the jury to consider the plausibility of the appellant's explanation for electing to make no comment: see Condron v UK at para 61".

31. At paragraph 45 that point is dealt with in the following terms:-

"45. (v) It seems to us that paragraph 61 of the decision in Condron v UK affords a more substantial point of concern in relation to the judge's summing-up. In that paragraph the ECHR stated:

"Admittedly the trial judge drew the jury's attention to this explanation. However he did so in terms which left the jury at liberty to draw an adverse inference notwithstanding that it may have been satisfied as to the plausibility of the explanation. It is to be observed that the Court of Appeal found the terms of the trial judge's direction deficient in this respect (See paragraph 27 above). In the Court's opinion, as a matter of fairness, the jury should have been directed that, if it was satisfied that the applicant's silence at the police interview could not sensibly be attributed to their having no answer or none that would stand up to cross-examination, it should not draw an adverse inference."

That last direction was the one stated by Stuart-Smith L.J. in Condron to have been `desirable', though the court was nonetheless satisfied that the convictions were safe in the light of the almost overwhelming evidence. Nonetheless, its absence caused the ECHR in Condron -v- U.K. to treat the direction given as incompatible with the exercise by the applicants of their right to silence (para 62)".

32. The difficulty we have is that in paragraph 61 in Condron the court could be said to be dealing with two slightly different questions. The first was with the possibility that the plausibility of the explanation might have been accepted by the jury but they should have been warned not to draw an adverse inference in those circumstances. The second was with not drawing an adverse inference from the appellant's silence unless it could sensibly be attributed to a non-innocent explanation. That does not, as it seems to us, simply bring in to play the plausibility of the explanation; it brings also in to play whether the silence itself might be attributed to a non-innocent motive.

33. The analogy seems to us to be with the Lucas direction. Only if the jury were sure that the lie had been given for a non-innocent reason should they draw an adverse conclusion from it and use it as evidence against the appellant. What we believe this last sentence of paragraph 61 is concerned with is with warning the jury not to draw any adverse inference unless they took the view that the silence was for a non-innocent reason.

34. In R v Condron and Condron (supra) at p.194 Stuart-Smith LJ quoted from R v Cowan Gayle and Riccardi [1996] 1 CrAppR 1. That case was concerned with s.35 of the Criminal Justice and Public Order Act 1994. It gave guidance as to the directions in such a case. It included:-

"5. 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."

35. Stuart-Smith LJ at p.195 said:-

"Having regard to the views of this court in Cowan, we consider that it is desirable that a direction on the lines indicated above should be given."

36. But at that time the JSB guidelines were in a different form from that which they now take. In particular they did not contain any direction to the effect that the jury may conclude "that it has since been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny". Nor did it contain the last paragraph of the present directions. [See p.193 of Condron and Condron at D-F].

37. The present guidelines make clear that where no explanation has been given for the silence, the inference that the Crown is asking the jury to draw is of a "non-innocent nature" i.e. invention/tailored or the answer would not have lived up to scrutiny, and that it is a matter for the jury whether that inference is to be drawn.

38. It seems to us that there is a danger of reading the JSB guidelines too literally when seeking to apply them to criticisms of a summing-up. It may be wise for judges to follow them as nearly as possible, but it is not every case which is concerned with, for example, silence because the answer would not stand up to cross-examination, nor every case where it will be necessary to use the words verbatim, as per the last sentence of the directions.

39. This case was concerned with whether the answer on one aspect of the case in the witness box had been invented, and whether it had been invented to bolster a false defence. The direction had to make clear to the jury that it was only if they concluded that the failure to mention something was for a non-innocent reason (i.e. because it was untrue and only being referred to in evidence to bolster a false defence), that they should take it into account, and they should not so conclude until at least a prima facie case against the defendant had been made out.

40. That was the effect of the Recorder's direction in this case and we thus do not think there was a misdirection and the second ground of criticism thus fails.

41. In the circumstances we do not consider there was any breach of Article 6 of the Human Rights Convention. It thus follows that we do not need to get into any debate about whether the trial process was unfair and/or as to whether the verdict was unsafe.

42. For the reasons that we have endeavoured to give this appeal accordingly is dismissed.