England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM (PORTSMOUTH CROWN COURT)
(HIS HONOUR JUDGE HUGHES QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Tuesday 29th July 2003

Lord Justice Laws:

INTRODUCTORY

1. On 1 May 2003 before his Honour Judge Hughes QC at the Portsmouth Crown Court this appellant was convicted by the jury on two counts of indecent assault on a female, and on 23 May 2003 was sentenced to two concurrent terms of 12 months imprisonment. The judge also made an order for an extended licence period of 5 years under section 85 of the Powers of Criminal Court (Sentencing) Act 2000. The appellant was ordered to be registered under Part I of the Sex Offenders Act 1997 indefinitely. He appeals against conviction and sentence by leave of the single judge.

THE FACTS

2. The facts are very short. The victim of both offences was the ten years old daughter of a friend of the appellant. On the 28 October 2002 with her mother's consent the appellant took the little girl for a walk in a wood where she had not been before. After half an hour or so the appellant stood in front of her and put his right hand down her trousers, to rest on the top of her leg. He did not touch her knickers or crotch. Then he put his hand under her T-shirt and touched her stomach just above her navel. She tried to get away but his hand around her stomach restrained her. Then they moved on. Shortly afterwards he stopped her again. He put his hand down her trousers a second time and touched the top of her leg. She felt frightened and said she was sleepy and wanted to go home. The appellant gave evidence in his own defence. He told the jury that at one stage during the walk he had put his hands on the girl's shoulders to turn her round so that she could look at a deer. His hands never touched her skin, and he never touched her in the way she described.
3. After the child complained to her mother, the appellant was arrested on 19 November 2002. He was cautioned in the proper way and the police sought to interview him. At the beginning of the interview process a prepared statement was read out to the police by the appellant's solicitor. The statement, which was admitted in evidence and read by the judge to the jury in the course of the summing up, gave a narrative account wholly in line with the appellant's later testimony before the jury. The appellant then proceeded to decline to answer any questions asked of him by the police. He said he did so on his solicitor's advice. He was asked about that at trial, and this is how the judge recorded his response (summing up transcript, 19E – 20C):

"… this is what Mr Knight told you about that event: he said 'I hope I can hold my own quiet well in questioning, but I had been advised by Miss Cook, the duty solicitor, not to answer the police questions. I chose to accept the advice from the solicitor. I was asked by the police questions like whether I knew Linda Taylor, if I had a dog and the allegations were put. I said each time, "no comment". When you get arrested and accused of something you haven't done, you may get confused and answer the questions wrong. Matters were fresh in my memory when I was interviewed, but I thought the solicitor's advice was the best advice to take.' Mr Sharpe put this to him: 'you knew your story was false and that is why you hid behind the advice. If you were innocent you would have been eager to help the police. You didn't want to be tripped up in interview.' Mr Knight answered: 'no, I was not guilty of the charges and the solicitor advised me to make no comment. I expect without a advice I would have answered the police questions, but I may have misunderstood them and then given the wrong answers.'"

THE STATUTE

4. It is convenient at this stage to set out the relevant terms of section 34 of the Criminal Justice and Public Order Act 1994:

"(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 night 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 SUMMING-UP

5. This is how the judge, immediately after his recital of the solicitor's prepared statement, directed the jury upon the question whether any adverse inference might be drawn from the appellant's "no comment" interview (summing up transcript 22B –23H):

"Members of the jury, the weight to be given to that prepared statement is entirely a matter for you, but Mr Knight admits that thereafter he refused to answer any of the questions put to him by the police. He said, 'No comment' after each question was put. Members of the jury, this failure to answer police questions may count against him. This is because you may draw the conclusion from his failure that he did not want to allow the police to scrutinise the account given in the prepared statement with their own questions. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it, but you may take it into account as some additional support for the prosecution's case and when deciding whether his case about these facts is true. You may draw such a conclusion against him only if you think it is fair and proper conclusion and you are satisfied about three things. First, that when he was interviewed he could reasonably have been expected to answer the police questions. Second, that the only sensible explanation for this failure to do so was that he had no answers that would stand up to the scrutiny of police questioning. And, third, that apart from his failure to answer the police questions, the prosecution's case against him is so strong that it clearly calls for an answer by him.

The defence invite you not to draw any conclusion from the defendant's silence when questioned on the basis that the defendant has told you that he did not answer any questions on the advice of his solicitor. Members of the jury, this fact does not automatically prevent you from drawing an adverse conclusion from his silence. Bear in mind that a person given legal advice has the choice whether to accept or reject it and that the defendant was warned that any failure to mention facts which he relied on at his trial when he was questioned might harm his defence. He has told you that he was concerned that he might get confused and say the wrong thing. You will make of that what you will and you will decide whether, if true, that justified his refusal to answer any of the police questions. Members of the jury, you should decide whether the defendant could reasonably have been expected to decide for himself whether or not to answer the police questions. You will bear in mind that Mr Knight is a mature man aged 51, he has been married for many years. You will bear in mind the explanation that he has given you about his concern that he would get confused and give the wrong answer. If you are sure that the defendant did not want to allow his account to be subjected to scrutiny at that stage by police questioning and he merely latched on to the legal advice as a convenient shield behind which to hide, you would be entitled to draw a conclusion against him. "

6. Thereafter in the absence of the jury there was some discussion between counsel and the learned judge as to the form of the direction, not least in light of Howell [2003] EWCA Crim 01 (17 January 2003) in which, as it happens, the judgment of this court was delivered by myself. The judge did not however revisit the direction, and so the matter was left to the jury on the basis put by the judge as we have recited it.

THE PARTIES' SUBMISSIONS

7. It is submitted for the appellant:

i) On a strict interpretation of s.34 the appellant did not mention when questioned facts on which he later relied; but had a prepared statement been given in response to a question such as, what do you say happened? no suggestion of adverse inference under the section could have arisen.

ii) No adverse inference may be drawn merely from a failure to answer questions, only from a failure to mention facts; and, it is said, the judge confused these two distinct conceptions. Argent [1997] 2 CAR 27 is referred to.

iii) Given the congruity of the prepared statement with the appellant's evidence in court, there can be no inference that the appellant's account was a later fabrication, or that the appellant was not prepared to have it investigated and scrutinised by the police.

iv) The judge should have told the jury that reliance on legal advice can justify a failure to mention facts. So far as Howell holds that there must be a "soundly based objective reason" (paragraph 26) for silence if an adverse inference is to be avoided, it is inconsistent with Argent, Betts and Hall [2001] CAR 257, and also with Condron [2000] Crim LR 679 and Beckles (2002) ECHR 44652/98; and is therefore incompatible with Article 6 of the European Convention on Human Rights.

v) The judge should have directed the jury that the prepared statement could justify a subsequent failure to mention facts when questioned.

8. By contrast it is submitted for the Crown:

i) S.34(1)(a) is specifically drawn so as to allow adverse inferences when there is a failure to mention facts when being questioned. The making of a pre-prepared statement is quite outwith the scope of the subsection, and cannot preclude the drawing of an adverse inference.

ii) The reason for this, so it is said, is that the policy of the subsection is to encourage suspects to submit what they have to say to the process of scrutiny and testing constituted by the police interview; and attention is drawn to part of paragraph 2 of the Judicial Studies Board guideline direction (set out in the current addition of Archbold at paragraph 15 – 334):

"… you may draw the conclusion from his failure that he had had no answer then/had no answer that he then believed would stand up to scrutiny…"

iii) Howell was not decided per incuriam, since Argent, Betts and Hall, Condron and Beckles were all referred to. So far as there is a difference between Howell and the line taken in Betts and Hall, Howell should be followed.

iv) So far as the judge's direction to the jury involved a modification of the JSB guideline, that was justified in light of Howell.

THE ISSUES REFINED

9. That was how the arguments were at first articulated; but in the course of counsel's submissions it became clear that there are really only two questions in the case. (1) Is the distinct purpose of s.34(1)(a) not only to encourage a suspect to give his full account to the police in response to the accusation made against him, but also (on pain of a distinct inference being later drawn if he does not do so) to have that account subjected to testing questions – in effect cross-examination – by the police in interview? (2) Is a suspect's silence in interview rendered immune to later adverse inferences once it is accepted that that course was taken because a solicitor advised it (whether the reasons for the advice were good or bad)?

THE FIRST QUESTION

10. If question (1) is answered in the negative, then on its true purpose the end sought to be procured by s.34(1)(a) is no more than early disclosure of a suspect's account and not, separately and distinctly, the subjection of that account to the test of police cross-examination. On that footing, as it seems to us, there was no proper space for any adverse inference to be drawn by the jury in this case, where the defendant gave his full account in a pre-prepared statement from which he did not depart in the witness box. Unless s.34(1)(a) was enacted distinctly to promote not only the giving, but also the testing, of a suspect's account, there is no sensible difference between the events which happened in this case and the disclosure of a suspect's account in response to police questions rather than in a pre-prepared statement. The suspect has mentioned all the facts on which he later relies in his defence. The fact that he has not mentioned them specifically in response to police questions must be immaterial unless the questioning process itself is intended by the subsection to secure results over and above the disclosure of the suspect's account; and such results could only consist in the presumed benefits of having the account cross-examined to.
11. We have come to the clear conclusion that the aim of s.34(1)(a) does not distinctly include police cross-examination of a suspect upon his account over and above the disclosure of that account. Had that been intended, it seems to us that Parliament would have used significantly different language. The relevant failure could readily have been described as a failure 'to answer questions properly put to him under caution by a constable trying to discover whether or by whom the offence had been committed', rather than a failure to mention any facts relied on in his defence. But the point is not merely linguistic. A requirement to submit to police cross-examination (so long as the questions are proper), or at any rate an encouragement to do so on pain of later adverse inferences being drawn, is a significantly greater intrusion into a suspect's general right of silence than is a requirement, or encouragement, upon the suspect to disclose his factual defence. We by no means suggest that such an intrusion could not properly be legislated for without offence to Article 6 of the European Convention on Human Rights; but it would, we think, require a much sharper expression of the legislature's will than can be found in the words of the statute as enacted.
12. There are other difficulties with the Crown's argument on this part of the case. If, as here, a suspect has in truth delivered his full account of the matters in relation to which he is accused, albeit by way of a pre-prepared statement, what is the available inference to be drawn against him for his refusal then to answer the police question by question? It cannot be recent fabrication of his defence: he has stated his defence in full before or at the beginning of the interview. It could only be that the defence, although thus revealed in full, ought not to be believed, or at least is of doubtful veracity, because it was not tested by police questioning. But it is very difficult to see how such a distinct inference could properly be drawn in the milieu of the trial process. If the defendant gives evidence at his trial, plainly the jury will assess the quality of that evidence not least in light of the defendant's answers in cross-examination. If (having given in full his account at the earliest stage by way of a pre-prepared statement) he acquits himself well in the witness box in the eyes of the jury, it would surely be neither realistic nor fair for them then to draw back from that conclusion in light of the fact that he did not subject himself to police cross-examination in interview. If on the other hand the defendant declines to give evidence at his trial, then adverse inferences may be drawn against him where appropriate under s.35. In that situation there can surely be no sensible room for further inferences under s.34.
13. We would therefore answer the first question affirmatively in favour of the appellant. We should emphasise, however, that the general consequences of that conclusion have to be looked at with some little care. The making of a pre-prepared statement is not of itself an inevitable antidote to later adverse inferences. The pre-prepared statement may be incomplete in comparison with the defendant's later account at trial, or it may be, to whatever degree, inconsistent with that account. One may envisage many situations in which a pre-prepared statement in some form has been put forward, but yet there is a proper case for an adverse inference arising out of the suspect's failure "on being questioned under caution… to mention any fact relied on in his defence…". We wish to make it crystal clear that of itself the making of a pre-prepared statement gives no automatic immunity against adverse inferences under s.34.
14. Nor does it follow that, in a case in which it is not suggested that any adverse inference should be drawn under s.34, the prosecution can be required to adduce as part of their evidence a pre-prepared wholly self-serving statement. In such a case the law remains as stated in Pearce 69 CAR 365, 370:

"(3) Although in practice most statements are given in evidence even when they are largely self-serving, there may be a rare occasion when an accused produces a carefully prepared written statement to the police, with a view to it being a part of the prosecution evidence. The trial judge would plainly exclude such a statement as inadmissible."

15. All that said, this appellant disclosed his full defence on the facts, just as it was later put to the jury, to the police by way of the prepared statement. That being so, there was in our judgment no legitimate room for an adverse inference to be drawn against him under s.34. The learned judge was therefore in error in directing the jury that such an inference was available. Given the whole circumstances of the case, that error in our judgment renders the conviction unsafe. It is therefore our duty to allow the appeal and quash the conviction, and we do so.

THE SECOND QUESTION

16. It follows that the second question, essentially as to the correctness of the decision in Howell, does not distinctly arise, and anything we say on the subject will be obiter. But in the hope that it may be of some assistance we shall express our view about it. In Howell I said (paragraphs 23 – 24):

"23… It seems to us that this provision [sc. s.34] is one of several enacted in recent years which has served to counteract a culture, or belief, which had been long established in the practice of criminal cases, namely that in principle a defendant may without criticism withhold any disclosure of his defence until the trial. Now, the police interview and the trial are to be seen as part of a continuous process in which the suspect is engaged from the beginning. Of course he retains a right to silence, which the statute protects: not in absolute terms, but by providing, in the words we have emphasised, that adverse inferences may be drawn only in those cases where he could reasonably have been expected to mention the facts in question.

24. This benign continuum from interview to trial, the public interest that inheres in reasonable disclosure by a suspected person of what he has to say when faced with a set of facts which accuse him, is thwarted if currency is given to the belief that if a suspect remains silent on legal advice he may systematically avoid adverse comment at his trial. And it may encourage solicitors to advise silence for other than good objective reasons. We do not consider, pace the reasoning in Betts & Hall, that once it is shown that the advice (of whatever quality) has genuinely been relied on as the reason for the suspect's remaining silent, adverse comment is thereby disallowed. The premise of such a position is that in such circumstances it is in principle not reasonable to expect the suspect to mention the facts in question. We do not believe that is so. What is reasonable depends on all the circumstances… There must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police. Solicitors bearing the important responsibility of giving advice to suspects at police stations must always have that in mind."

17. We do not consider that the legitimacy of this approach is undermined by other authority. In Argent Lord Bingham CJ said this at 33E-G:

"Sometimes they [sc. the jury] may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as that he was… worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury… Only rarely would it be right for the judge to direct the jury that they should, or should not, draw the appropriate inference."

But this reasoning does not, in our respectful opinion, suggest that the mere giving of advice to remain silent may – far less will – itself immunise the suspect from adverse inferences under s.34. As for Betts & Hall, we set out the material passages of this court's judgment in that case (paragraphs 53 – 54) at paragraph 22 in Howell. We will not replicate them here. We do not understand the court in Betts & Hall to have held that proven reliance on a solicitor's advice to stay silent without more immunises the suspect from later adverse inference, whatever the quality of the advice. If, however, the text of Betts & Hall might be thought to express such a view, we would disavow it. So far as the bite of precedent is concerned, any difference between Betts & Hall and Howell goes not so much to the reach of any rule of law as to the practical impact of the statute's phrase "a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned". A shift of view upon such a matter is not to be ruled out of court on grounds of stare decisis. The rules of precedent, not least in the field of our criminal law, by no means require so rigid an approach.

18. All this said, we consider that it will perhaps be useful if we make it clear that we do not intend to exclude altogether the possibility of a case arising in which, although the solicitor has given no reasons or bad reasons to stay silent, still it would be wrong to draw a s.34 inference against the defendant: he may in the particular circumstances of the case be distinctly weak or vulnerable, so that it would not be reasonable to expect him to give an account to the police. It would be a matter for the jury.
19. As regards Condron and Beckles, and the compatibility of this court's approach in Howell with those cases and therefore with the requirements of Article 6 of the Convention, we expressed our view in paragraph 25 of Howell that there was no such incompatibility. We see no reason to revisit that issue to any further extent.

CONCLUSION

20. In the result, then, we would hold that Howell is good law and sets out the general approach to be taken under s.34 when a suspect refuses to answer questions put to him by the police in interview. However because of the particular facts arising in this case, not least the fullness of the appellant's pre-prepared statement, the appeal is allowed for the reasons we have earlier given.