England and Wales Court of Appeal (Criminal Division) Decisions

		Neutral Citation Number: [2002] EWCA Crim 1571
		Case No: 2000/07130/W3 2000/07222/W3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON
HIS HONOUR JUDGE TILLING

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th June 2002

B e f o r e :

LORD JUSTICE PILL
MR JUSTICE NELSON
and
MR JUSTICE McCOMBE
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	R
	- v -
	Alec Henry James BRISTOW And Paul Garfield JONES

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(Transcript of the Handed Down Judgment of
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Andrew Bright QC appeared for the appellant Alec Henry James Bristow
Kim Hollis QC appeared for the appellant Paul Garfield Jones
Andrew Munday QC appeared for the Crown
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Lord Justice Pill:

1. On 13^th November 2000 in the Crown Court at Kingston before His Honour Judge Tilling and a jury, Alec Henry James Bristow and Paul Garfield Jones were convicted of conspiracy to murder. Jones was also convicted of attempted murder and possessing a firearm with intent to endanger life. Bristow was sentenced to 14 years imprisonment and Jones to 17 years imprisonment on each count, the sentences to run concurrently. The two men were jointly charged on Count 1 with Sean Bixley, who was acquitted. Jones appeals against conviction by leave of the single judge. Bristow renews his application for leave to appeal against conviction following refusal by the single judge.
2. The prosecution case was that the three defendants were party to a plan to kill Douglas Burns. Inadvertently, the wrong man was shot. Burns was employed as manager of a security firm (GSD) operated by Bristow. Tensions developed between them. On 9 November 1999 Burns kept £2,000 of £4,400 given to him by Bristow to pay wages to employees of the firm. Burns claimed it was due to him as wages and bonus. He announced that he was ceasing to work for JSD and setting up a security firm in competition.
3. On 17 November 1999 Burns made a number of threatening telephone calls to Bristow and his wife, apparently believing that Bristow had been responsible for a phone call to Burns’s wife in which she was told that Burns was having an affair. On the same day a message was left on Burns’s voicemail stating “Anytime, arsehole ... anytime”. Five days later a second voicemail message with the words “Bang, bang” was left on Burns’s machine.
4. On either 23 or 26 November, Bristow left a voicemail for Burns arranging for them to meet at 10.00 pm on 29 November at a McDonalds’s restaurant near Burns’s home in Worcester Park, Surrey. On 26 November, Bixley, who also worked for GSD, was beaten up by Burns. Bixley, angry over the attack, was heard to make threats against Burns.
5. At about 9.45 pm on 29 November, Burns was given a lift by a friend to the arranged meeting place at McDonald’s. Bristow did not attend and was at the time elsewhere in a restaurant with his wife.
6. The prosecution case was that Bristow planned to kill Burns as a result of their dispute. Bristow enlisted Jones to carry out the shooting. Knowing that Burns was not a driver, he arranged the meeting at McDonald’s expecting that Burns would walk to the restaurant along an alley-way close to his home. There Jones would shoot and kill him. Jones was alleged to be motivated solely by the payment he would receive from Bristow.
7. At about 9.45 pm on 29 November, Mr Earnest Broom, Burns’s next door neighbour was alerted by his wife to a man acting suspiciously in their front garden. He chased a black man wearing black clothing for some distance before the man turned and shot him once in the abdomen with a sawn-off shotgun. On admission to hospital, Broom’s condition was critical. He underwent surgery to remove over 200 pellets from his abdomen. He recovered from his injuries.
8. The weapon was a twenty-bore shotgun. Plastic wadding from the cartridges was left on the pavement. The size of the shot removed from Broom was No 5 gauge and its chemical make-up consisted of lead, antimony, barium and aluminium.
9. In the course of the trial, it emerged that the voicemail messages on Burns’s machine had not come from Bristow’s telephone. One was found to have come from a mobile telephone in the possession of Clement Barton who gave evidence that he had done security work for GSD. He knew Maxine Wacy from whose address the other message had originated. He gave evidence that he had not fallen out with Burns. In returning a call, by the call-back procedure, he had once left an offensive message with a number which was unknown to him.
10. Broom gave a description of the gunman. He had stubble on his chin and upper lip and was wearing a very dark grey anorak with pockets and a hood. Trousers were of the same colour and the gunman was wearing trainers. Broom did not pick out Jones at an identification parade.
11. Mrs Broom gave evidence that the man wore a dark puffer style quilted coat which was black or navy blue. He wore a hood and jogging bottoms and carried a bag on his back. Other witnesses gave evidence that the gunman was dressed in black and was wearing a jacket.
12. Bristow’s wife, Mrs Melissa Bristow, gave evidence that her husband was angry with Burns because of their dispute and, when he discovered that Burns had beaten up Bixley, he asked Jones to visit him. Mrs Bristow gave evidence that Bristow told Jones that he had organised a meeting with Burns at 10.00 pm on 29 November and asked Jones to “get rid of” Burns so that he would not cause any more trouble. They agreed that Jones would obtain a gun to shoot Burns. Bristow gave Jones £200 and agreed that Jones would also receive a Granada car as payment.
13. On 29 November 1999, there was, according to Mrs Bristow, another meeting between Bristow and Jones at an office. After the time of the shooting on 29 November, Jones arrived at the back door of their house wearing a black wool hat rolled up to his ears and a black zipper jacket zipped up to the neck. He wore black trousers and black trainers. He was wearing glasses and had a bit of stubble on his face. A discussion took place between Jones and Bristow about Jones having shot the wrong man.
14. Another witness, Mr Stevenson, gave evidence that he was told by Bristow to tell Burns that he knew he had “to walk through dark alleyways at night, not to watch his back, but what is coming in front of him”.
15. A black puffer jacket was found in a cupboard at the home of Jones’s girlfriend, Bonwick. In a pocket were three twenty-bore cartridges of the same make as the shot fired. Two more were found in a box in the cupboard at a higher level than the jacket. The shot from one of the cartridges made a chemical match in terms of trace elements with the shot fired. Firearm discharge residue, of the appropriate chemical composition, was found on the jacket which was consistent with it having been worn recently in close proximity to a discharging firearm. There was a DNA match between a sample taken from the jacket and the sample taken from Jones. He admitted that he had worn the jacket.
16. Jane Perryman, a former girl friend of Jones, and her mother, discovered twenty-bore shotgun cartridges at the smallholding once run by them and Jones. Jones had said that they were his and had hidden them at her premises. The cartridges were different in make from those found in the cupboard. The Crown relied on the cartridges as evidence that Jones had access to a twenty-bore shotgun.
17. A firearms expert gave evidence that the use of a twenty-bore shotgun in criminal cases was unusual. He had encountered it only about 10 times over 15 years. The wadding found at the scene of the shooting was consistent with the cartridge found in the puffer jacket pocket.
18. Two partial footmarks in the flowerbed outside the home of the Brooms were consistent with a pair of Jones’s boots which could not be excluded as definitely not having caused the marks.
19. In interview, Bristow denied that he was involved in any plan to murder Burns. He said that he was not the only person involved in disagreements with Burns. He referred to threats made against Burns by another man. Burns had also been using moneylenders. He said that he barely knew Jones whom he described as a “madman” and a “complete nutter”. Jones exercised his right to silence when interviewed by police on 3 December 1999 and 28 March 2000.
20. In evidence, Bristow agreed he had been angry with Burns. He had set up the meeting at McDonald’s with the intention of sorting out their differences and had every intention of keeping to the arrangement. He denied that he had asked Jones to visit his home and denied that Jones had been to his home on 28 November or that they had met in an office on 29 November. On the evening of 29 November, he forgot about the meeting at McDonald’s. He went home feeling unwell and went to bed. He denied that Jones visited his house later that night. Jones visited the house with Carol Hanton at about noon on 30 November to see a Granada motor car Bristow had been advertising for sale. Jones bought the car. There was no black puffer jacket in the boot
21. Jones denied visiting Bristow’s house on the evening of 28 November and denied the office meeting on the following day. On 29 November he was at an auction at Merstham miles away from the shooting in Worcester Park. He denied visiting Bristow’s home on the night of 29 November. He had found the puffer jacket inside the boot of the Grenada motor car he had brought from Bristow on 30 November 1999. He wore it briefly on one occasion and then put it in the cupboard at Bonwick’s house. He had no knowledge of the cartridges in it or of the other two cartridges found in the box in the cupboard. He could only assume that the cartridges had fallen out of the jacket and into the box. He denied changing his appearance, by removing a moustache or stubble, immediately after the time of the killing.
22. The judge warned that the evidence of Mrs Bristow, who had herself originally been arrested and interviewed in connection with the shooting, should be approached “with great care”. In particular, in relation to Bixley, she claimed that it had been Bixley who had written the address of Burns on a piece of paper when it was almost certain that Mrs Bristow herself had written the note.
23. While Bristow was giving evidence, the judge received a note signed by eight members of the jury stating that they felt intimidated by a woman in Court who was clearly associated with Bristow. At the judge’s request the woman agreed to keep out of the jury’s sight. The judge advised the jury that they should not allow what they had seen to reflect on or have any bad effect on Bristow or his case.
24. On behalf of Bristow, it is accepted that the summing-up was fair and balanced. Overall, it was in our view conspicuous for its clarity and fairness. On behalf of Bristow, Mr Bright QC submits that the trial was rendered unfair by the late disclosure of the material establishing that the voicemails received by Burns did not originate with Bristow. They supported Bristow’s contention that there were others with a grievance against Burns. There was insufficient investigation of that question and also of the links of Burns and Jones with others with possible motives.
25. It is accepted that, instructions having been taken, it was decided not to apply for an adjournment. The decision was a difficult one to take, the evidence of Mrs Bristow having to a large extent, it is submitted, been discredited at the trial.
26. We do not see merit in this ground. Burns was recalled following the voicemail disclosures. Barton, who was linked with both messages, was recalled and cross-examined. The fairness of the trial was not in the event impaired.
27. Neither was it impaired by the jury’s note or what led to it. The judge took the right course in the circumstances. There was, in any event, no application to discharge the jury.
28. It is further submitted that the Court should have a “lurking doubt” about the safety of Bristow’s conviction. Reliance is placed on the suspect nature of Mrs Bristow’s evidence. In his summing-up, the judge noted that her evidence was “on the face of it, very important evidence”. He referred to the late disclosure of important parts of her account. He referred to her possible motive of shifting the blame away from herself, even after having released without charge. He referred to her having “actually lied in the witness box” and referred to the note she alleged had been written by Bixley. The judge stated:

“... approach her evidence with caution. At the end of the day it is for you to decide whether she is so flawed a witness that you feel you cannot rely on anything she says to you. Whether she is flawed to the extent that you feel you need some other evidence to support hers before you can believe her, or whether you feel able to rely on some parts of her evidence whilst rejecting others. Use your common sense, you saw her, you heard her, you heard all the other evidence, make up your minds about her.”

29. There was of course other evidence against Bristow, including that of Stevenson, the acquaintance with Jones and the transfer of the Ford Grenada motor car to Jones very shortly after 29 November.
30. At the request of counsel, we heard and determined Bristow’s renewed application before considering the appeal, and renewed application, of Jones. We were prepared to do that. It was not suggested that the points to be raised by Jones had any bearing upon Bristow’s application. The points raised on behalf of Jones, in particular that in relation to his silence at interview, do not bear upon the fairness of the trial in relation to Bristow, the evidence in his case, or the safety of his conviction.
31. In the circumstances, we have no doubt about the safety of the conviction. The application for leave to appeal against conviction is refused.
32. Jones renews an application for leave to appeal on a ground refused by the learned judge. It is that the judge erred in the exercise of his discretion in failing to exclude from evidence passages from the interview of Bristow which were highly prejudicial to Jones. The interview was edited for disclosure to the jury but the entire passage complained of should have been excluded. Cross-examination of Bristow on what remained would have risked reintroducing parts of the interview excluded by agreement.
33. Complaint in particular is made about the admission of Bristow’s statement in relation to Jones: “he’s a madman. He’s complete nutter”. The judge permitted its admission on the basis that it was probative of the state of Bristow’s knowledge and belief about the person he admitted associating with. On an analysis of the full interview, it is submitted, Bristow’s statement was based not on his own knowledge but on what he had been told by others.
34. In our judgment, the judge’s exercise of discretion cannot be criticised. The interview was not of course admissible against Jones and the judge gave an appropriate direction, but it was relevant to Bristow’s case. The fact that the source of Bristow’s belief was what he had been told by others, and not based on his own knowledge of Jones, does not render it irrelevant. A person’s perception or opinion of another person may often be based on what he has been told by a third party about that person. This is not an arguable ground of appeal.
35. The grounds of appeal on which leave has been granted are that the judge failed adequately to direct the jury in relation to section 34 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) and, secondly, that the appellant was further prejudiced by the fact that the direction was not given in relation to the earlier interviews on 3 December 1999 but was given in relation to those of March 2000.
36. Section 34 provides, insofar as is material:

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

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

(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,

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

(2) Where this subsection applies...

...

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

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

Section 38 provides, insofar as is material:

“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...”

37. There is no merit in the second point. The circumstances in December and those in March were different. In December the police had not disclosed what evidence they had against Jones. He was advised in those circumstances to say nothing. The judge stated:

“... you may think that he was perfectly entitled in those circumstances to rely on his solicitor’s advice and say nothing. You may think it will be quite wrong to draw any adverse inference from his silence to those first interviews.”

The judge’s decision upon the December interviews was appropriate as was his direction to the jury.

38. In relation to the March interviews, the prosecution submitted at the trial that it would have been reasonable for the appellant to have mentioned, had it been true, his presence at the auction at Merstham on 29 November. It was also submitted that it would have been reasonable for him to have mentioned that he had found the puffer jacket in the boot of the car he had obtained from Bristow on the day after the shooting and had subsequently worn it for a short time. By March 2000, an allegation that Jones was the gunman had in effect been made. For the appellant, it is submitted that no direct allegation that the appellant was the gunman had been put to him. Moreover, he had not been told of Jane Perryman’s evidence of the cartridges found at her farm.
39. In our judgment, the judge was entitled to give a section 34 direction in relation to the March interviews and, moreover, it was appropriate that he should do so. The allegation was sufficiently put to the appellant to permit a direction in an appropriate form. His lack of knowledge of the Perriman evidence does not exclude the appropriateness of a direction. It was a separate piece of evidence which had no direct bearing on the alibi or the finding of the puffer jacket and cartridges at the appellant’s girlfriend’s address.

The direction was:

“ Mr Jones was told, and he tells us, he clearly understood that if he failed to mention something when he was being questioned which he later relied on in court it might harm his defence. He literally did decide to say nothing in all of those interviews. Let me remind you and stress as Ms Hollis did, that he is perfectly entitled to stand on that right and answer no questions, however, if he chooses to do so then certain consequences follow. If you are satisfied that he has now said in evidence something which he could have told the police when he was being interviewed, and you are satisfied that the reason he did not say it at the time was because he knew that if any checks were made before his story was in place it might be embarrassing to him, then you are entitled to draw what inferences you think is proper to draw from that silence.

Now, looking at the particular interviews for one moment, we know that on the first occasion he was interviewed he was represented – as he was later – by a solicitor. It is right to say that the police did not disclose at that stage, at the first interview, what evidence they had against Mr Jones. His solicitor in those circumstances advised him to say nothing, and you may think that he was perfectly entitled in those circumstances to rely on his solicitor’s advice and say nothing. You may think it will be quite wrong to draw any adverse inference from his silence to those first interviews. However, the situation is different in March, because on the 28^th of March we know that his solicitor had a disclosure document – which you have seen – of the evidence that involved Mr Jones, including mention of the scientific evidence. We know that Mr Jones had a two hour meeting with his solicitor armed with that information, we know that at the start of that interview, unlike the first one his solicitor raised no advice that he had given to his client, he did not say that he had advised him to be silent. Mr Jones chose to be silent, to say nothing, to say nothing about where he had been on the day of the shooting. Although, apparently he knew that he had been with Carol Hanton at an auction in Merstham, miles away from the shooting in Worcester Park. Said nothing about how he innocently came into possession of that puffer jacket. I repeat, he does not have to prove his own innocence but you are entitled to ask, ‘why did he refuse to mention those facts when he was questioned?’ What inference do you think is right to draw from that refusal.”

40. It is conceded by the prosecution that the judge did not direct the jury that an inference drawn under section 34 could not of itself prove guilt and that he did not direct them as to reasonable expectations.
41. For the appellant, Miss Hollis QC submits that the direction was inadequate in that it failed to direct the jury that it was for them to decide whether the appellant could reasonably have been expected to mention the matters at issue, failed to direct that the failure to mention did not of itself prove guilt and could be taken into account as additional support for the prosecution case only if they had decided that there was a case for him to meet. It is further submitted that the jury should have been reminded of the appellant’s explanation at interview for his failure to answer questions and that his failure could only be taken against him if the jury considered that his explanation was inadequate.
42. In the Case of Condron v The United Kingdom (Application No 45718/97), the European Court of Human Rights considered section 34 of the 1994 Act, and a direction given thereunder in a summing-up, in the context of Article 6 of the Convention. The applicants had been charged with drugs offences and there was considerable evidence against them apart from any inference arising from their silence upon interview. The Court considered the manner in which the Court of Appeal had dealt with the question (reported at [1997] 1 Cr App R 185).
43. The ECHR stated:

“27. The Court of Appeal then considered the applicants’ criticism of the trial judge’s summing up in so far as he omitted to remind the jury that ‘they could only draw an adverse inference if, in spite of any evidence relied upon to explain the failure to mention the relevant matters (or indeed in the absence of such evidence) they conclude that such failure can only sensibly be attributed to the fact that the appellants must have fabricated the evidence subsequently.’ The Court of Appeal, with reference to the dicta of Lord Taylor CJ in R v Cowan [1996] QB 373) (see paragraph 33 below) considered that it would have been desirable if the trial judge had directed the jury along the following lines:

‘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 be 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.’

28. However, the Court of Appeal did not find that this lacuna in the summing-up meant that the convictions were unsafe, having regard to the weight of the other evidence. Lord Justice Stuart-Smith explained in this connection:

‘We have already referred to the substantial, almost overwhelming evidence of drug supply from what was found in the [applicants’] house. Although there were no scales, all of the other paraphernalia of supply was present. All but one of the jury must have rejected the [applicants’] explanation of the police observations, must of which was recorded on video, the presence of the matching wraps in Curtis’s flat and the elaborate security arrangements at the applicants’ own flat. The acquittal of Curtis shows that the jury regarded the evidence of the interviews as insignificant. Curtis also failed to answer questions in interview.’”

44. As to this, the applicants in Condron argued:

“48. The Court of Appeal had acknowledged that there had been a crucial defect in the trial judge’s direction. However, it proceeded to speculate on the safety of their conviction with reference to the weight of the evidence adduced by the prosecution. In the applicants’ submission that approach was flawed for the very reason that it was impossible to gauge the effect which their silence had on the jury’s thinking.”

45. The Court considered the effect of its earlier judgment in John Murray (Report of Judgments and Decisions 1996-I):

“56. The Court recalls that in its John Murray judgment it proceeded on the basis that the question whether the right to silence is an absolute right must be answered in the negative (pp. 49-50, § 47). It noted in that case that whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation (ibid. § 47).

The Court stressed in the same judgment that since the right to silence, like the privilege against self-incrimination, lay at the heart of the notion of a fair procedure under Article 6, particular caution was required before a domestic court could invoke an accused’s silence against him. Thus it observed that it would be incompatible with the right to silence to base a conviction solely or mainly on the accused’s silence or an a refusal to answer questions or to give evidence himself. Nevertheless, the Court found that it is obvious that the right cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution (ibid. § 47).”

46. In its conclusions, the Court dealt with the specific point raised in Condron and a more general point:

“61. ... 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.

62. Unlike the Court of Appeal, the Court considers that a direction to that effect was more than merely ‘desirable’ (see paragraph 27 above). It notes that the responsibility for deciding whether or not to draw such an inference rested with the jury. As the applicants have pointed out, it is impossible to ascertain what weight, if any, was given to the applicants’ silence. In its John Murray judgment the Court noted that the trier of fact in that case was an experienced judge who was obliged to explain the reasons for his decision to draw inferences and the weight attached to them.

Moreover, the exercise of the judge’s discretion to do so was subject to review by the appellate courts (ibid., p. 51, § 51). However, these safeguards were absent in the instant case. It was thus even more compelling to ensure that the jury was properly advised on how to address the issue of the applicants’ silence. It is true that the judge was under no obligation to leave the jury with the option of drawing an adverse inference from their silence and, left with that option, the jury had a discretion whether or not to do so. It is equally true that the burden of proof lay with the prosecution to prove the applicants’ guilt beyond reasonable doubt and the jury was informed that the applicants’ silence could not ‘on it own prove guilt’ (see paragraph 22 above). However, notwithstanding the presence of these safeguards, the Court considers that the trial judge’s omission to restrict even further they jury’s discretion must be seen as incompatible with the exercise by the applicants of their right to silence at the police station.

63. The Court does not agree with the Governments’ submission that the fairness of the applicants’ trial was secured in view of the appeal proceedings. Admittedly defects occurring at a trial may be remedied by a subsequent procedure before a court of appeal and with reference to the fairness of the proceedings as whole (see the Edwards v the United Kingdom judgment of 16 December 1992, Series A no. 249B, pp 34-35, §§ 34 and 39). However, as noted previously, the Court of Appeal had no means of ascertaining whether or not the applicants’ silence played a significant role in the jury’s decision to convict. The Court of Appeal had regard to the weight of the evidence against the applicants. However it was in no position to assess properly whether the jury considered this to be conclusive of their guilt.

64. The Court is not persuaded either that the fact that the co-accused, Mr Curtis, who also remained silent during police interview (see paragraph 28 above), was acquitted indicates that the jury attached little weight to the applicants’ silence in finding them guilty. It cannot be excluded that the jury accepted Mr Curtis’ explanation for his silence and did not therefore draw an adverse inference against him; it cannot be excluded either that the jury may have accepted the applicants’ defence to the charges, for example their claim that the police had planted incriminating evidence in their flat (see paragraph 19 above) and that the evidence against them was not as overwhelming as the Court of Appeal considered. In any event, it is a speculative exercise which only reinforces the crucial nature of the defect in the trial judge’s direction and its implications for review of the case on appeal.

65. The Court must also have regard to the fact that the Court of Appeal was concerned with the safety of the applicants’ conviction, not whether they had in the circumstances received a fair trial. In the Court’s opinion, the question whether or not the rights of the defence guaranteed to an accused under Article 6 of the Convention were secured in any given case cannot be assimilated to a finding that his conviction was safe in the absence of any enquiry into the issue of fairness. In the above-mentioned Edwards case the Court of Appeal considered in detail the impact of the information withheld from the defence (ibid., p 35, § 35). It was able to assess for itself the probative value of that information in the light of the arguments of the defence which was by that stage in possession of the information and to determined whether the availability of that information at trial would have disturbed the jury’s verdict (c.f. the Rowe and Davis v the United Kingdom judgment of 16 February 2000, to be published in the Court’s official reports, § 65). Accordingly, the rights of the defence were secured by the review conducted on appeal.

66. 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 applicants’ silence. Section 34 of the 1994 Act specifically entrusted this task to the 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 fundamental importance of the right to silence, a right which, as observed earlier, lies at 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.”

47. The alleged defects in the summing-up do not include the defect identified in Condron. In that case, an explanation for failure to mention points during the police interview was given and the trial judge drew the jury’s attention to the explanation. The Court’s opinion on that issue was stated in the last sentence of paragraph 61, already cited. In the present case, while that warning was not given in terms, the jury were directed that they were entitled to draw an inference from silence if they were satisfied “that the reason he did not say it at the time was because he knew that if any checks were made before his story was in place it might be embarrassing to him”.
48. However, the prosecution concede that there were two other defects. An explanation for not mentioning a fact was given (written submission in paragraph 1(v)) and the attention of the jury was not drawn to it. The explanation was that the appellant was of the view that, in the circumstances existing at the time of the interview, it could not be the allegation against him that he was the gunman and it was not incumbent upon him to establish an alibi. The jury were not directed that they had to be sure that he did not fail to mention acts that he could reasonably have been expected to mention at interview. Moreover, the jury were not directed, in accordance with section 38(3) of the 1994 Act, that the appellant could not be convicted solely on an inference drawn from the failure on refusal. The precise terms in which that direction is to be given do not fall for consideration in the present case. They did not in Condron where the Court noted that it did not have to “take a stand on that issue (paragraph 67).
49. The general point established and underlined in Condron is that, in jury trial, even when a case against a defendant is otherwise strong, it is “impossible to ascertain what weight, if any, was given to the applicants’ silence” (paragraph 62). The point is stated in the second part of paragraph 63, already cited. Because the right to silence lies “at the heart of the notion of a fair procedure under Article 6” (paragraph 56 and paragraph 66), safeguards are required and in Condron the jury were informed that silence could not on its own prove guilt. The Court nevertheless found that “the trial judge’s omission to restrict even further the jury’s discretion must be seen as incompatible with the exercise by the applicants of their right to silence at the police station” (paragraph 62). A consequence of the absence, in a jury trial, of a reasoned decision is, in the view of the ECHR, a requirement for a detailed direction as to the requirements to be satisfied before silence at interview can be relied on to support a conviction.
50. We are naturally reluctant to quash a conviction where the evidence against the appellant is as strong as the evidence in this case, leaving the silence at interview entirely out of account. In Condron, however, the Court first identified the defect in the summing-up and its effect in a case where the Court of Appeal had found that there was other compelling evidence against the defendant. The Court then considered the prosecution argument that the jury attached little weight to the applicants’ silence in finding them guilty. The Court found that to be a “speculative exercise which only reinforces the crucial nature of the defect in the trial judge’s direction and its implications for review of the case on appeal” (paragraph 64). The Court found that the question whether Article 6 rights were secured cannot be assimilated to a finding that the conviction was safe in the absence of any enquiry to assure fairness (paragraph 65). The Court concluded that “in the circumstances the jury was not properly directed and the imperfection in the directions could not be remedied on appeal” (paragraph 66).
51. We have considered the distinction which may be drawn between procedural flaws which are technical and those which are not. In R v Hanratty (transcript 10 May 2002) Lord Woolf CJ cited the judgment of the Northern Ireland Court of Appeal in R v Iain Hay Gordon [2002], unreported, CAR (3298). Carswell LCJ stated at paragraph 29:

“It seems to us that it is now possible to formulate two propositions in respect of irregularities at trial, which formed the subject of a good deal of argument before us:

1. If there was a material irregularity, the conviction may be set aside even if the evidence of the appellant’s guilt is clear.

2. Not every irregularity will cause a conviction to be set aside. There is room for the application of a test similar in effect to that of the former proviso, viz whether the irregularity was so serious that a miscarriage of justice has actually occurred.”

In our judgment, the reasoning of the ECHR upon directions under section 34 makes it impossible, given the defects in the summing-up, to find that the irregularity was other than a material irregularity which requires the conviction to be quashed. The jury did not, and could not, give reasons for their decision. This Court is unable to ascertain whether the appellant’s silence played a significant role in the jury’s decision to convict. The defects in the section 34 direction in what was otherwise an admirable summing-up were substantial.

52. That being so, we have come to the conclusion that the convictions of Jones must be quashed. We consider it unlikely that the appellant’s silence in the present case played a significant in the jury’s decision to convict. However, we apply the principle that in the absence of a direction that silence could not of itself prove guilt and of a direction as to reasonable expectations in the circumstances already considered, there is a danger, on the authority of Condron, that the jury may have convicted on a basis which did not give effect to the qualified protection to the right to silence provided by the law.
53. The appeal of Jones is allowed and his convictions quashed.
54. Bristow also seeks leave to appeal against sentence. He is 45 years old and has many previous convictions dating back to 1972. Most of them are for offences of dishonesty, including burglary, and for road traffic offences. He has served several short custodial sentences. He has convictions, in his earlier years, for possessing an offensive weapon in a public place and assaults on the police. The judge stated:

“You have been convicted by a jury of a calculated attempt to rid yourself of an annoying rival. You were quite content to pay for that service to be performed on your behalf while you went out to dinner. You were the instigator of this plan (”

55. On Bristow’s behalf, it is submitted that the judge failed to give sufficient weight to the very real provocation represented by Burns’s threats to the Bristow family in a series of calls in November 1999. Insufficient regard was paid to the absence of convictions for serious violence and the absence for many years of offences other than road traffic offences and offences of dishonesty. Bristow is diabetic and his time in prison will be more onerous as a result.
56. When refusing leave to appeal, the single judge stated that the sentence was “fully merited for a dreadful crime”. We agree, and the renewed application is refused.
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LORD JUSTICE PILL: At the hearing the application of Bristow was refused. The reasons are now stated in the judgment handed down. For the reasons given in the judgment handed down, the appeal of Jones is allowed and his convictions are quashed. Are there any applications?

MR MUNDAY: My Lord, there is an application that your Lordships order a retrial under section 7 of the 1968 Act. In our submission, it is in the public interest here where the case is comparatively recent. It is a serious crime and the retrial can be conducted without unfairness to the defendant. Your Lordships will be aware that the offence of attempted murder occurred on 29th November 1999. The defendant was first arrested on 3rd December of that year and rearrested and interviewed on 28th March. The trial, as your Lordships may recall, began on 9th October 2000 and ended on 13th November. All matters, therefore, are comparatively fresh. Although there was publicity, it was not unfair or inaccurate in our submission. In view of your Lordships' view, stated in the judgment, as to the strength of the evidence, apart from this one issue, we would submit that it is an appropriate case in which justice would be served by the ordering of a retrial.

LORD JUSTICE PILL: Yes. Miss Hollis?

MISS HOLLIS: My Lord, the only matter that I would ask the court to take into consideration when considering the Crown's application is indeed the amount of time that has passed since the date of the original allegation. As my learned friend has just said, the date of the alleged offence was 29th November 1999, and by the time this matter comes to trial, we are in June 2002 now, even if it comes to trial before the end of the year in September, it will still be three years since the date of the original offence or allegation.

My Lords, so far as Mr Garfield Jones' defence was concerned, of course my Lords are aware that identification was an issue in relation to Mr Garfield Jones and was indeed always disputed. So, in those particular circumstances, bearing in mind three years has now passed, my Lords might take that into consideration.

My Lords know that although Mr Garfield Jones was first arrested in December 1999 he was finally charged on 28th March 2000, he has remained in custody since that time. So, again, another two years has passed since his original arrest. My Lords know the facts in relation to his interviews (the "no comment" interviews) and matters such as that, and all the factors surrounding what occurred in the police station following his arrest and interview.

As far as publicity is concerned, the only matter I can ask my Lords to take into consideration was of course the short passage that my Lords saw which was included in the original appeal bundle - alleged hit man, a mad man and a nutter - that appeared before the jury retired to consider their verdict. Those are the matters that I put before the court.

LORD JUSTICE PILL: Yes, thank you. Anything in reply, Mr Munday?

MR MUNDAY: This is not a "fleeting glance" case. The issue is whether or not a jury would believe Mrs Bristow as to her assertion that he was the man who she knew, a close neighbour, or shall I say a partner of a close neighbour, who was recruited to carry out the attempted murder, was there the evening of the attempted murder, and there the day after to collect part of his payment. Not a "fleeting glance" case, identification in the conventional sense. Therefore, not an issue.

LORD JUSTICE PILL: Thank you, we will retire.

(Short Adjournment).

LORD JUSTICE PILL: We grant the application for a retrial. In our judgment, the interests of justice require it. In reaching that conclusion we bear in mind the passage of time and the point raised as to publicity of the earlier trial. Are there any other applications?

MR MUNDAY: Will your Lordships continue his custody under section 8?

LORD JUSTICE PILL: We need to give a direction on the fresh indictment, do we not?

MR MUNDAY: Indeed. I am in your Lordships' hands as to how quickly that should be done.

LORD JUSTICE PILL: We direct that a fresh indictment be preferred. Section 8(1) provides for a period within two months. Is there any application made about that, it does not stop you presenting sooner, of course?

MR MUNDAY: No.

LORD JUSTICE PILL: Do you have any submissions, Miss Hollis?

MISS HOLLIS: No, my Lord.

LORD JUSTICE PILL: Thank you. We direct that the appellant be rearraigned on the fresh indictment within two months. Were you legally aided at the trial?

MISS HOLLIS: Yes, I was, my Lord.

LORD JUSTICE PILL: That would not cover any retrial. Do you have any application?

MISS HOLLIS: Yes, I do have an application in relation to that, my Lord. At the lower court the legal aid certificate was for leading junior and junior counsel, your Lordship will have seen that since that time I have been somewhat elevated, so I would ask that it should cover a QC, so that I could, no doubt, conduct the defence on this occasion as well?

LORD JUSTICE PILL: Yes.

MISS HOLLIS: With the original junior counsel as well?

LORD JUSTICE PILL: Yes. We order legal aid for the retrial, and the order covers one QC and one junior counsel.

MISS HOLLIS: Thank you, my Lord.

LORD JUSTICE PILL: What about solicitors?

MISS HOLLIS: Solicitors as well, yes, please. My solicitors have indeed attended today, although of course they are not legal aided at all. They have assisted me greatly during the preparation of this appeal.

LORD JUSTICE PILL: Yes, and a solicitor.

MISS HOLLIS: Thank you, my Lord.

LORD JUSTICE PILL: What about venue and the judge to hear the case, do you require any directions? Any reason why it should not go back to Kingston?

MR MUNDAY: My Lord, no reason that I am aware of. The reporting was in the general area, and wherever it is the reporting will be the same.

LORD JUSTICE PILL: Yes.

MR MUNDAY: I see no reason why it cannot go back there.

LORD JUSTICE PILL: Yes, we simply direct that the matter is retried at the Kingston Crown Court.

MR MUNDAY: Thank you very much.

LORD JUSTICE PILL: Any other application?

MISS HOLLIS: No, my Lord, there is no application for bail.

LORD JUSTICE PILL: Thank you.

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