England and Wales Court of Appeal (Criminal Division) Decisions

Elliott, R v [2002] EWCA Crim 931 (24th April, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM COURT MARTIAL
Assistant Judge Advocate General Woollam

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th April 2002

Mr Justice Nelson:

1. On the 25th April 2001 at a District Court Martial held at Bulford the Appellant was found guilty of assault occasioning actual bodily harm, and sentenced to 112 days detention, reduced to the ranks and ordered to pay compensation of £500 to Marine Searle, his victim.
2. On the 8th May 2001 the Appellant petitioned the Army Reviewing Authority. His petition, though not in the correct form, was considered on its merits by the Judge Advocate General and rejected on the 24th May 2001. The Appellant now appeals against his conviction to this Court by leave of the single judge.

The Facts.

3. On the 21st April 2000 the Appellant headbutted Marine Searle in a bar in Marseilles, causing a laceration to his forehead which required six sutures. Searle, in the company of the Appellant and Marine Gibbons had been drinking together for some time when an argument broke out between Searle, who was new to the team, and Gibbons. The Prosecution contended that the Appellant took Gibbon’s side in the argument and said to Searle that if he did not shut up he would ‘nut him’. Searle was alarmed at this and said to the Appellant ‘if you’re are going to do it, you’re going to do it’, and as he turned back towards Gibbons the Appellant headbutted him.
4. The Appellant admitted that he had head-butted Searle but said in evidence that he done so in self defence. He had returned from the bar carrying three pints and when he told the two to stop arguing Searle became aggressive and took up a stance which made the Appellant think that he was going to strike him with the empty pint glass he was holding. The Appellant said that he felt defenceless and as he thought Searle was going to glass him the only defence he had was to throw his head forward which he did.
5. The Appellant told Marine Lucas later in the evening that he had had to head butt Searle because he was being stupid. He told Lucas that he was very regretful about it but did not say to him that he thought he was about to be attacked.
6. When the Appellant was interviewed in July 2000 he made no mention of self defence. Indeed he gave a ‘no comment’ interview on the advice of his solicitor. Corporal Fuszard who conducted the interview in the presence of Colour Sergeant Douglas and the Appellant’s solicitor, was cross-examined at the court martial hearing by the Appellant’s counsel, Mr Nicholas Lewin, who also appeared before us. Corporal Fuszard said that he had conducted the interview with the Appellant to get his ‘version of events. Obviously you can’t just chat to him, it needs to be put on tape, for his benefit and mine.’ He said the ‘no comment’ stance had no bearing on the decision whether or not he would be prosecuted as there was enough evidence, Corporal Fuszard believed, for him to be put forward for report. Prior to interview therefore there was, Corporal Fuszard thought, sufficient evidence for him to be charged.
7. When Mr Lewin sought to ask Corporal Fuszard about whether the old or new caution should be used where there is sufficient evidence for an individual to be charged, (intending to raise an argument based on C:16.5) the Judge Advocate discouraged him. She said ‘no comment was made, very little was said as a result of it all -- there we are.’ Mr Lewin told us that he had understood this to mean that the Judge Advocate did not intend to raise the drawing of adverse inferences under section 34 of the Criminal Justice and Public Order Act 1994, as amended by the Criminal Procedure and Investigations Act 1996. It later transpired that there had been a misunderstanding between counsel and the Judge Advocate who clearly was intending to raise section 34 and had not fully appreciated the direction of Mr Lewin’s cross-examination. Corporal Fuszard was no longer available and the question of further evidence was not pursued.
8. Mr Lewin submitted to the Judge Advocate that no adverse inference under section 34 could be drawn as the interviewing officer was of the opinion that there was sufficient evidence for the Appellant to be charged prior to the interview and hence was no longer ‘trying to discover whether or by whom the offence had been committed’. This submission was rejected by the Judge Advocate who directed the court martial impeccably that they could, if they thought it fair in all the circumstances, including the solicitors advice to make no comment, draw adverse inferences from the failure to mention self defence.

The Grounds of Appeal.

9. The interviewing officer believed that there was enough evidence to charge the Appellant, but he wanted to give him a chance to explain his side of the story before he did so. This is the effect of the interviewing officer’s evidence that:-

a) the interview was conducted only to allow Elliott to put his side of the story

b) prior to the interview there was sufficient evidence to ‘charge’ and

c) the ‘no comment’ stance did not effect his decision to ‘charge’.

It does not follow from (c) that the appellant would have been charged if he had given an exculpatory account of the incident.

10. Mr Lewin submitted to us, as he had submitted to the Judge Advocate and in writing to the Reviewing Authority, that once the interviewing officer had reached the stage of believing that there was sufficient evidence for Elliott to be charged, he was no longer ‘trying to discover whether or by whom the offence had been committed’ and hence no adverse inference could be drawn under section 34(1)(a) and (2) of the Criminal Justice and Public Order Act 1994.
11. The Appellant relied upon R -v- Pointer [1997] Crim LR 676 and R -v- Gayle [1999] Crim LR 502 for this proposition but conceded that, in accordance with the authorities of R -v- Van Bokkun and others Archbold News Issue 6 of 2000, R -v- McGuiness [1999] Crim LR 318 and R -v- Ioannou [1999] Crim LR 586, it could not be contended that it was improper for the officer to conduct the interview at all.

The submissions.

12. Mr Lewin submits that once the interviewing officer has decided there is enough evidence to charge, as Corporal Fuszard agreed that he had in this case, it must follow that there is also sufficient evidence for the prosecution to succeed as under C:16.1 that stage must have been reached before the question of charge by the custody officer arises. Whilst not conceding that there is any different threshold between ‘sufficient evidence to prosecute’ and ‘sufficient evidence for a prosecution to succeed’, Mr Lewin submits that in any event it makes no difference on the facts of this case as both must have been satisfied for the officer to have been satisfied that the evidence was sufficient to make a charge.
13. In addition it was submitted on behalf of the Appellant that any adverse inference under section 34 should only be drawn where he had failed to answer a prosecution enquiry as opposed to the situation where he has simply failed to advance his own case. Were it be otherwise, inroads would be made into the right to silence. Thus for example in an overwhelming case such as the smoking gun and the body at the feet, a Defendant would effectively lose his right to silence if adverse comment could be made on a ‘no comment’ interview.
14. Mr Lewin accepted that Van Bokkun, McGuiness and Ioannou support the proposition that an interview could be conducted in such circumstances and would be admissible but submitted that no adverse inference should be drawn so as to ensure that the right to silence was protected.
15. In any event on the facts of this case, he submitted, the problem did not arise as the officer must have been taken to believe that the prosecution would succeed as occurred in the case of Pointer, with the result that no interview save to ask whether there was anything further to say, could take place. The Court should take into account, it was submitted, that Mr Lewin was effectively stopped from carrying out any further investigation in cross-examination with Corporal Fuszard as a result of the misunderstanding between him and the Judge Advocate.
16. The Respondent submitted that the interview was clearly admissible on the authorities and the question which arose was whether any adverse inference should be drawn under section 34. C:11.4 was a two limb test, requiring firstly belief that the prosecution should be brought and secondly, belief that there was sufficient evidence for that prosecution to succeed. Neither of those limbs was satisfied here as the witness was not asked about whether he believed the prosecution would succeed but only whether there was sufficient evidence for the Appellant to be charged. The necessary factual basis for the Appellant’s submission was therefore not established: we simply do not know what the officer would have said if he had been asked the right question.
17. As to section 34, the whole purpose was to prevent the ‘ambushed defence’. If the Appellant’s submissions were correct there could be no adverse inference drawn from a ‘no comment’ interview where the evidence against the suspect was strong and when, as Mr Lewin accepted, an interview could properly have been held. Even in the smoking gun/body case where there was clear evidence that there had been an unlawful assault, the Defendant should still be given the opportunity in interview to say either ‘accident’ or ‘self defence’. Were that not the case the Code would not make sense and the whole purpose of section 34 would be negated.

The Code.

18. C:11 Interviews: general

“C:11.4 As soon as a police officer who is making enquiries of any person about an offence believes that a prosecution should be brought against him and that there is sufficient evidence for it to succeed, he shall ask the person if he has anything further to say. If the person indicates that he has nothing more to say the officer shall without delay cease to question him about that offence.”

19. C.16 Charging of detained persons

“C:16.1 When an officer considers that there is sufficient evidence to prosecute a detained person, and that there is sufficient evidence for a prosecution to succeed, and that the person has said all that he wishes to say about the offence, he shall without delay (and subject to the following qualification) bring him before the custody officer who shall then be responsible for considering whether or not he should be charged. ..”

“C:16.5 Questions relating to an offence may not be put to a person after he has been charged with that offence, or informed that he may be prosecuted for it, unless they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement, or where it is in the interests of justice that the person should have put to him and have an opportunity to comment on information concerning the offence which has come to light since he was charged or informed that he might be prosecuted. Before any such questions are put to him, he shall be warned that he does not have to say anything but that anything he does say may be given in evidence and reminded of his right to legal advice in accordance with paragraph 6.5 above.”

Section 34 Criminal Justice and Public Order Act 1994.

20. Effect of accused’s failure to mention facts when questioned or charged

“34 - (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 an 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 appear proper.”

The Authorities

21. A ‘no comment’ interview held in breach of the Code of Practice should not form the basis of a section 34 direction. R -v- Pointer [1997] Crim LR 676, R -v- Gayle [1999] Crim LR 502 and R -v- Van Bokkun & others Archbold News Issue 6 2000.
22. In Pointer the interviewing officer said that before he interviewed the Appellant, he believed that there was sufficient evidence for a successful prosecution of the Appellant for the offence with which he was ultimately charged. Thus under paragraph C:11.4 of the Code the officer believed that a ‘prosecution should be brought against him’ and that there was ‘sufficient evidence for it to succeed’. Once the officer had reached that stage he could only ask the person if had anything further to say, and if he had nothing further to say had to cease to question him about that offence. The giving of an opportunity to a Defendant to say anything further under paragraph C:11.4 was found in Pointer to be an interview within the definition of C:11.1(a).
23. If the detained person has nothing further to say then paragraph C:16.1 applies. Under that paragraph, if the detained person has said all he wishes to say about the offence, and the officer considers that there is sufficient evidence to prosecute and that there is sufficient evidence for a prosecution to succeed, he has to take the detained person to the custody officer for consideration as to whether or not he should be charged. The custody officer must then make his own decision under section 37 of the Police and Criminal Evidence Act 1984.
24. On the basis of the officer’s evidence in Pointer the prosecution conceded that section 34 of the Criminal Justice and Public Order Act 1994 did not apply. The Court clearly accepted this concession as being correct on the facts of that case.
25. In Gayle however there was no such evidence from the officer but the Prosecution felt constrained in view of Pointer to concede that section 34 did not apply as the police clearly did have sufficient evidence with which to charge the Appellant before the interview began and could have done so.
26. In McGuiness the Court in dealing with the effect of paragraph C:16.1 and 11.4 of the Code said:-

“The combined effect of those provisions is that it is not open for a suspect to be questioned beyond the point when he has been or ought to have been charged. If he is then certain consequences will follow. The first is that the interview is liable to be ruled inadmissible. The second is that the content of such an interview is not available to support the prosecution case and that includes any adverse inference which might be drawn from a failure to answer questions, or to offer an explanation, or to put forward a defence. So much is clear from the decisions of this Court in Pointer and Gayle. The submission here is that prior to the interview of 9th May taking place the police had sufficient evidence to prosecute the detained person, that is the appellant, and that there was sufficient evidence for a prosecution to succeed. In support of his submissions, Mr Hynes [counsel for the appellant] points to the fact that following a ‘no reply’ interview the police did proceed to charge the appellant and to bring this prosecution. We have to say that superficially at any rate that is an attractive argument. If it is right however, it would mean that in every case where the police had got together a prima facie case against a suspect they would be bound to charge and the opportunity would be lost not only for the police to question the suspect but also for the suspect to put forward an explanation which might immediately dispose of any suspicion held against him. We note however that C:16.1 suspends the obligation to charge until ‘the person has said all that he wishes to say about the offence’. Even absent those express words, we would have been prepared to hold the words ‘sufficient evidence to prosecute’ and ‘sufficient evidence for a prosecution to succeed’ must involve some consideration of any explanation or lack of explanation coming from the suspect. Whether or not the stage has been reached where a suspect ought to have been charged will depend upon the particular facts of the case.”

27. In Ioannou the interviewing Customs officer said that he believed at the time that the evidence was strong enough for a successful prosecution but pointed out that he had no personal responsibility for bringing that about. In considering paragraph C:11.4 the Court said :-

“The interviewing or investigating officer .. must, before he charges, be in a position to make an informed decision as to whether or not to charge. He will usually decide (and would have had to here) that fairness would require that any such decision would have to take into account any explanation or information that the suspect might volunteer on the topics on which he is questioned.”

The Court regarded as ‘nonsense’ the argument that the opportunity to give such explanation or information should not be given to any prospective defendant because the case seemed overwhelming even without his comment or explanation.

28. Pointer and Gayle were distinguished on the facts of R -v- Finburg CA transcript November 5th 1999 where McGuiness was cited with approval. On the facts in Finburg it was found that the constable, before the interview, was still trying to discover whether the offence of smuggling cocaine had been committed by the appellant. Furthermore the appellant did not refuse to answer questions but gave a full account in his interview under caution. It could be said therefore that before interview, he had not said all that he had wished to say about the offence. On these facts the Court upheld a section 34 direction.
29. In R -v- Odeyemi [1999] Crim LR 828 Pointer and Gayle were also distinguished on the facts and the Court said:-

“It was desirable that officers should have the chance to question suspects in order that explanations could be put forward which showed that either no offence had been committed or that the offence had been committed by someone else, so that the police might, in an appropriate case, look in other directions before evidence disappeared and be sure that they were not accusing the wrong person. It was only where the officer in question was truly of the opinion that there was sufficient evidence for such a prosecution to succeed, that interviewing should be avoided or, if it was already in progress, stopped.”

30. In R -v- Coleman and others , transcript October 20 1995, the court accepted that there had been a breach of the Code as the Prosecution had already concluded that there was sufficient evidence to prosecute the defendant and for the prosecution to succeed, but nevertheless interviewed one of the defendants rather than asking him simply whether he had anything further to say. Finally, Pointer and Gayle were considered in Van Bokkum and others in which this court preferred the reasoning in McGuiness and Ioannou to the decision in Gayle, insofar as that case could not be explained on its own facts. In Van Bokkum the court considered that the reasoning in McGuiness and Ioannou accorded with the language of the Code.

Conclusion.

31. On the basis of the authorities, notwithstanding the interviewing officer’s belief that there was sufficient evidence at the time when he sought to question the appellant to justify charging him, he was not prohibited from offering him the opportunity to put forward his own account of the incident. As Professor Birch explains in her helpful commentary on Gayle, an account from the suspect may serve to reduce or extinguish the prospects of a successful prosecution. Any innocent explanation proffered by him, for example, accident or self defence, would require to be considered, and would probably have been considered, as part of the overall information available to the officer deciding whether there was ‘sufficient evidence to prosecute’ and ‘sufficient evidence for a prosecution to succeed’. Applying the principles to be derived from the authorities, this was not a case where a fixed decision to charge the appellant, irrespective of anything he may have said, had been reached. Accordingly the interview conducted, or sought to be conducted, by Corporal Fuszard did not constitute a breach of the Codes.
32. Section 34 applies where an officer is ‘trying to discover whether or by whom the offence had been committed’. Whether an offence has been committed, depends, as Professor Birch says in her commentary, as much on the availability of defences as it does on the proof of actus reus and mens rea. In this case, if the appellant may have been acting in self defence, his actions would not have been unlawful and he would have committed no offence. As the interview was justifiable, the appellant cannot complain of the direction given by the Judge Advocate in relation to his ‘no comment’ response.
33. We are conscious of the fact that Mr Lewin was discouraged from asking any further questions of Corporal Fuszard by the Judge Advocate, and that we are uncertain of his response if the cross-examination had continued. Accordingly, we have considered the safety of the conviction in the light of the misunderstanding between Mr Lewin and the Judge Advocate.
34. Three significant features impress us. First, the case against the appellant was, on the face of the evidence, a powerful one, irrespective of any possible adverse inference. Second, when on the evening of the event, the appellant spoke to Marine Lucas, he said that he had head butted Searle because Searle was being stupid. He made no mention that he was or felt that he was under any threat. Third, he failed to proffer the explanation he advanced at his trial not only when Corporal Fuszard interviewed him, but also when he was charged. On the facts here, we are satisfied that the conviction is safe.