England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
His Honour Judge Pownall QC
Indictment No. T961317

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 November 2004

The Lord Chief Justice :

INTRODUCTION

1. This reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 has a long history. In view of that history, we are especially grateful for the very helpful arguments which have been advanced by Mr. Anthony Jennings QC, on behalf of the Appellant, and Mr. David Perry, on behalf of the Crown, both orally and in writing.
2. The Appellant, Keith Anderson Beckles, was convicted on the 23^rd May 1997 at the Central Criminal Court before His Honour Judge Pownall QC of two counts of robbery, one count of false imprisonment and one count of attempted murder. He was sentenced to a total of 15 years' imprisonment. The sentence was made up of 6 years' imprisonment, concurrent, on each count of robbery, 3 years' imprisonment on the count of false imprisonment and 9 years' imprisonment, consecutive, on the count of attempted murder.
3. The Appellant was tried jointly with Rudolph Leopold Montague and Michelle Fagler Whyte. Montague was convicted of only one count of robbery, but otherwise he was convicted on the same counts as the Appellant. He was sentenced to a total of 18 years' imprisonment. Whyte was convicted of both counts of robbery and the false imprisonment count, but was not indicted on the attempted murder count. She was sentenced to a total of 5 years' imprisonment.
4. On the 7^th May 1998 the full court of the Court of Appeal dismissed the appeals of both the Appellant and Montague. On the 8^th October 2002, the European Court of Human Rights ("ECtHR"), on an application lodged by the Appellant, ruled in the case of Beckles v United Kingdom (2003) 36 EHRR 13, that there had been a violation of Article 6(1) of the European Convention of Human Rights ("ECHR") as to the trial judge's directions to the jury. The misdirection concerned the instruction to the jury as to their right to draw adverse inferences from the Appellant's silence during an interview with the police on 24^th January 1996. On the 13^th November 2002, the Appellant applied to the Criminal Cases Review Commission ("CCRC") for his case to be referred to this Court. On the 13^th May 2003, the CCRC gave a provisional decision not to refer. Following further representations made on behalf of the Appellant on 20^th June 2003, the CCRC made the present reference on the 27^th October 2003.
5. The judge based his direction about which complaint is made upon section 34 of the Criminal Justice and Public Order Act 1994 ("section 34") which, so far as is relevant, is in the following terms:

"(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:

(c) the court, in determining whether there is a case to answer; and

(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.

(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.

……

(5) This section does not –

(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section; or

(b) preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section."

6. Section 34 was recently, justifiably, described by Dyson L.J. in R. v. B. (K. J.) The Times, December 15, 2003; [2003] EWCA Crim 3080, as "a notorious minefield" [paragraph 20 of transcript]. In R v Brizzalari, The Times, March 3, 2004; [2004] EWCA Crim 310, the Court of Appeal felt it necessary to discourage prosecutors from too readily seeking to activate the provisions of section 34 [paragraph 57]. As the Court said: "the mischief at which the provision was primarily directed was the positive defence following a "no comment" interview and/or the "ambush" defence" [ibid]. In this case the police knew the essence of the Appellant's defence before the police interviews.
7. The House of Lords (Lord Bingham in the chair) has recently emphasised the importance of statutory safeguards in respect of section 34 being strictly observed and jury directions being carefully framed: R. v. Webber [2004] 1 WLR 404 [paragraph 27]. Lord Bingham made it clear that: "the jury is very much concerned with the truth or otherwise of any explanation given by the defendant of his reasons for not mentioning the matter during earlier questioning, since if the defendant gives any exculpatory explanation of his failure to mention it which the jury accept as true or possibly so, it would be obviously unfair to draw any inference adverse to him from his failure to mention it" [paragraph 29].
8. The issues on this appeal are:

i) Did the trial judge misdirect the jury?

ii) If so, what is the effect of the misdirection?

The answers to those questions are complicated by the decision of the ECtHR and the fact that the trial took place before the Human Rights Act 1998 ("HRA") came into force, making the ECHR part of the domestic law of this country.

9. Our decision on these questions is very much dependent upon the evidence given at the Appellant's trial and the terms in which the judge directed the jury as to section 34 inferences. So it is to the effect of the relevant evidence followed by the relevant part of the summing up that we now turn.

Summary of the Relevant Evidence

10. The evidence for the prosecution was that on 3^rd January 1996, the victim, Mr. Mohamoud Abdi Mohammed ("Mohamoud") spent the day selling khat (a stimulant leaf) in the Upton Park area of London. At about 9.30 p.m. he met Michelle Whyte, a prostitute. She proposed that they should go back to her flat for sex, which would cost £20. Mohamoud, who had takings of about £90 with him at the time, agreed. They took a cab to a flat owned by Mr. Montague but used by Whyte for such purposes, in Hackney. Present in the flat, which was on the fourth floor, were three men, a woman and two teenagers. Soon after arriving at the flat Mohamoud was searched at knife-point by one of the men whom he later identified as Rudolph Montague. Whyte and the Appellant, it was alleged, held him while he was being searched. Montague found £30 or £40 and left the premises to buy drugs. Mohamoud was prevented from leaving the premises by, it was alleged, the Appellant. Montague returned to the flat with crack cocaine and this was smoked by those present with the exception of Mohamoud and the two teenagers. Mohamoud was later searched for a second time. He was held down by the Appellant (who was in possession of a hammer at the time) while Whyte searched him, finding more money in a purse tucked between Mohamoud's shirt and vest. Mohamoud was then kept in the flat until he was thrown out of a window by Montague, the Appellant and one of the women. Mohamoud landed on the ground below. He could not move his lower body and attracted attention by throwing stones at a ground floor window. An ambulance was called to the scene and at 2.50 a.m. on 4^th January 1996, Mohamoud was taken to the Royal London Hospital. He had seriously injured his spinal cord and was and remains completely paralysed from the waist down. He will be a complete paraplegic for the rest of his life.

The Police Investigation

11. Montague was arrested on 13^th January 1996. He initially gave a false name. When interviewed he provided a prepared statement in which he admitted that a man had fallen out of a window at his flat but denied that he had anything to do with the incident. He stated that he had been visiting friends and was on his way back to his premises when he met two people who had come from his flat and warned him not to go back there because a man had jumped through the window. He answered "no comment" to most of the questions put to him. In particular, he refused to answer any questions concerning drugs or whether he had been at the flat at the time of Mohamoud's arrival. He refused to give the names of those who had been present in the flat.
12. The Appellant was arrested just after 9.00 a.m. on 24^th January 1996. In response to the caution he stated: "I'm relieved, I've expected this every time I've been to the shops." On his way to the police station he said, "He wasn't pushed, he jumped, how is he?" On being told that Mohamoud was paralysed for life he stated, "I can tell you everything, he jumped." Following his arrival at the police station the Appellant was seen by a solicitor. When the Appellant was formally interviewed, the solicitor informed the interviewing officers:

"We have had the benefit of a lengthy private consultation, I have advised him in the circumstances he should not answer any questions at the present time. My reasons for this advice are that on the basis of what I've been told about the allegations, it's not reasonable for him to answer questions at the present time although he is willing to participate in an identification procedure."

13. The Appellant answered "no comment" to the questions put to him. Among the questions put to him were questions concerning whether he had been present in the flat at the time of the offences; whether he knew Montague; whether he had a gold tooth; whether Mohamoud had been thrown out of the window; and whether his fingerprints would be found on the window.
14. Whyte was arrested on 26^th January 1996. Upon being told that she was being arrested on suspicion of her involvement in the incidents of 3^rd/4^th January, she said: "I don't believe it, didn't he mention someone helping me, helping him". When interviewed she answered "no comment".
15. On 31^st May 1996, Mohamoud was shown video identification films and he positively identified Montague, Whyte and the Appellant. He described Montague as the ring leader who had searched him and taken his wrists to throw him from the window. The Appellant was identified as the man who had kept guard over him and who had taken his legs to throw him out of the window. Whyte was identified as the woman who had lured him to the premises and robbed him.
16. Further video identification films were shown to Mohamoud on 20^th June and 15^th July 1996. This was in an effort to identify the other men present at the premises. On 20^th June, Mohamoud failed to identify Everton Duncan, who was one of the men alleged to be at the flat, but he did identify one of the volunteers as the ringleader. On 15^th July, Mohamoud identified John Alexander, another man at the flat, but stated that he had not been a party to any of the offences.
17. Montague was re-arrested and interviewed on 30^th August 1996. A prepared statement was read on his behalf by his solicitor. In it he admitted that he had been present in the flat when Whyte arrived with Mohamoud, but said that about four or five minutes later he left with another woman called Donna Smith to buy crack cocaine. He was later told by friends that the man in his flat had jumped out of the window. He made his way back to the flat and met the Appellant, Michelle Whyte and two other women leaving the premises. They looked worried, especially the Appellant. They all went to another flat and watched the ambulance arrive.
18. The Appellant was re-arrested on 16^th September 1996. He was interviewed on 17^th September 1996. At the beginning of the interview in answer to the question of whether there was anything he wanted to say, he stated:

"Only that man was not pushed out of the window, he wasn't pushed out, and as far as I know I was not in the room, and Montague was not in the house ... He was alone in the room with [Michelle Whyte], and it was from Michelle that I learnt that he had gone out of the window, which I didn't believe. I went to have a look and I saw him lying on the grass and ... that's it. No-one did ... I've heard a story that he's saying that one of us held him by the hands, and his legs, and put him through the window and that's grossly untrue".

19. The Appellant went on to say that he had been asleep. He woke up and saw Mohamoud and Michelle Whyte and others. Mohamoud paid Whyte and Montague then went out with Donna Smith (the Appellant's girlfriend) to buy crack cocaine. Donna Smith returned with the drugs. Two other people arrived at the flat, Candy Groom and Everton Duncan. The Appellant went into the bathroom with Donna Smith. Later he asked Michelle where her client was and she said that he had "gone out the window". The Appellant went to the open window and saw Mohamoud on his back on the grass below. He then left the flat because he was scared and thought that Mohamoud might be dead. The Appellant stated that Mohamoud's account of being thrown from the window was nonsense.
20. Michelle Whyte was re-arrested on 7^th August 1996. When interviewed she declined to answer any questions stating:

"I am not willing to answer any questions as I was threatened and am in fear of danger so I'm not answering any questions."

The Trial Proceedings

21. The Indictment was amended during the course of the trial by the addition of a second count of robbery. This was to reflect the fact that Mohamoud had been robbed on two distinct occasions during the time of his false imprisonment within the flat.
22. The trial originally began on 24^th April 1997, but an incident occurred which meant that part way through the trial, the trial had to restart. The first jury were discharged on 2^nd May 1997, a new jury sworn in and the second trial started on 12^th May 1997. The prosecution case against the Defendants depended substantially upon the evidence given by Mohamoud. However, the prosecution called evidence which established that a blood sample taken from Mohamoud following his arrival at the Royal London Hospital showed a low alcohol reading of 24 milligrams of alcohol per hundred millilitres of blood. There was also evidence that a fingerprint which matched the Appellant was found on the window.

The Defendants' Evidence

23. Each of the Defendants gave evidence at trial. Montague confirmed that Whyte had arrived at the flat with Mohamoud at about 1.00 a.m. on the 4^th January. She paid for some crack. He then left with Donna Smith to buy more drugs and did not return to the premises. He added that on the way back to the flat he met two people who told him "Don't go back to your flat, Michelle's punter has jumped through the window". He added that he later met Whyte and others and that one of them said "the man jumped through the window".
24. The Appellant's evidence did not differ significantly from the account which he had given to the police at the second interview on 17^th September 1996. He admitted the conversations with the police. He added that when it came to being interviewed on 24 January 1996, he had intended to tell the police everything but the "solicitor advised me to exercise my right of silence" and he accepted her advice. In his second interview, after Mohamoud had identified him, he told them "as it was".
25. During cross-examination, prosecution counsel asked the Appellant why he had not answered police questions in the first interview and, following the Appellant's reply, questions concerning the advice of his solicitor. Defence counsel indicated that legal professional privilege had not been waived. Prosecution counsel then went on to ask the Appellant why he had not admitted being in the flat until after he had been identified. The Appellant said that he had been relying on his solicitor's advice. The Judge then intervened:

"Do not answer this until [defence counsel] has had an opportunity of saying anything to me. Would you be prepared to tell us what your solicitor said? Any objection?"

Defence counsel said: "It's a bit late, my Lord ... Your Lordship has asked the question in the presence of the jury. I am not going to seek to stop your Lordship."

The exchange then continued.

The Judge: "No, I am asking you whether you would have any objection to that question"

Defence counsel: "Not now, no."

Prosecution counsel: "I am not intending to pursue that."

The Appellant: "Yes, I would be prepared, if that question was to me."

26. Michelle Whyte in her evidence admitted that she worked as a prostitute and that she had taken Mohamoud to Montague's flat. She added that they did have sexual intercourse but were interrupted. She subsequently smoked crack and, feeling that she needed some fresh air, opened the window and saw Mohamoud lying on the ground. She denied that she had told the Appellant that her "punter" had gone "out of the window".

Summing Up

27. The judge in the course of his summing up dealt with the Appellant's arrest on the 24^th January. The critical parts of his summing up so far as this reference is concerned are as follows:

"Beckles was arrested 11 days later on 24 January. 'I'm relieved,' he said. 'I've been expecting this every time I've been to the shops.' On the way to the police station he said, 'He wasn't pushed, he jumped. How is he?' He was told that Mohamoud was paralysed for life. 'I can tell you everything,' he said. 'He jumped'.

He too was interviewed. He was asked whether he knew Montague and he was asked if he had been to [the flat] or into the front room there or into the bedroom there; whether he agreed he had a gold tooth and dreadlocks; whether he had taken crack cocaine on the day that we are all interested in and he agreed that he had been asked whether he had opened the window in the front room and whether his finger marks would be found in the front room and whether he had anything to say about the event on the 3^rd or 4^th January, and to all those questions he said, 'No comment'".

The judge added:

"I am not going to go through the whole of any of these interviews because you have got your copies of them and can consider them carefully and at your leisure when you retire. You may think that each defendant in relation to their first interview said a number of things during the course of their evidence which they did not mention in those first interviews. The Crown suggest that in the circumstances, and I am dealing now with Beckles and Miss Whyte, they could reasonably have been expected to mention those things and the law is this, and it applies to both of them, Beckles and Miss Whyte, that you may draw such inferences as seem to you to be fair and proper from that failure of theirs to mention them. You could, for instance, infer that they have fabricated their evidence, made it up, after those first interviews. You could infer that they were indeed biding their time and seeing whether or not they would be identified. That failure to mention the sort of things or give answers to the sort of questions that I have listed, as Beckles failed, cannot of itself prove guilt. So, of course, if you were not sure of Mohamoud's identifications of any of these defendants, that would be an end of this case, even if you thought they were behaving in the way that I have just described over their first interviews. But although they cannot of themselves, those failures, prove guilt, you may hold that failure against them in deciding whether they are guilty. You do not have to: it is for you to decide.

Beckles has told you that his reason for not answering some of the questions was that he had received advice from his solicitor that he should make no comment. Miss Whyte's reason was similar but with a difference. She said that she was still in shock and did not feel able to, could not tell her solicitor what had happened, so he advised her to say nothing. Of course we have – you have – no independent evidence as to what was said by either solicitor, but if simply saying, 'Oh my solicitor advised me not to answer questions' was by itself a good and final answer, any competent solicitor and a defendant would have the power to strangle at birth any interview and that would make, you may think, a mockery of the Act of Parliament which allows a jury, if they think it is right and proper, to make an adverse inference and that could not have been Parliament's intention. The fact is that it is Beckles' choice, Miss Whyte's choice whether or not to accept their solicitor's advice or not and any solicitor worthy of his or her name should have included in the advice the various pros and cons of saying no comment and in particular should have included the possibility, even the probability, that his or her defence could be harmed if they failed to mention facts that they could so easily do and that if they do not mention them, why then an adverse inference could be drawn. But as I say, you have no independent evidence as to what the solicitors said or did not say. But whether or not the solicitors said that, the officers certainly did. They did say to each of them that their defences could be harmed if they do not mention something, details which they are going to rely on later, and they mentioned that more than once and, indeed, on each occasion that they were cautioned and no doubt, and it has never been suggested otherwise, Beckles was cautioned when he was first interviewed and you can see Miss Whyte's caution on page 2 of her interview. So it is for each defendant himself or herself to decide whether to answer or not. You decide what you make of the reasons given for not answering. If you thought the reason given was a good one, then of course you would not hold it against them. If you thought that they were failing to answer certain awkward questions because, for example, they were keeping their powder dry, as it were, hoping against hope they would not be identified and the other reasons I mentioned a moment ago, or because they had not yet worked out what their defence was going to be, you could draw the inference that I have mentioned and, if you did, that might point towards guilt, but it is you who decide whether it is fair and proper to draw those adverse inferences."

Later the judge added after a complaint by the Appellant's counsel:

"When dealing with Beckles' and Whyte's first interviews when they failed to answer questions, I did not specifically remind you, though you have heard it any number of times, that the defendants were cautioned that they do not have to say anything. That is of course the position, they do not have to say anything, but the inferences I suggested that you can draw nevertheless remain if you think they have not mentioned things that they could reasonably have been expected to mention and if you think it is fair to take the inferences of the sort that I have mentioned, but there is that right to silence."

The appeal to the Court of Appeal (Lord Justice Henry, Mr. Justice Keene and His Honour Judge Colston QC)

28. In giving the judgment of the court dismissing both Montague's and Beckles' appeals, Lord Justice Henry indicated that he regretted the criticism of the summing up on the grounds that the jury had been misdirected as to section 34, and indicated that the direction was, if anything, unduly favourable to the Appellant. He referred to the fact that the judge had left to the jury the issue of whether the solicitor's advice was capable of providing a reason for not disclosing the facts in question, in circumstances when the Appellant's solicitor had not given evidence, privilege had not been waived and the Appellant had given no evidence as to the reasons behind the advice given by the solicitor.

The Decision of the ECtHR

29. While the ECtHR came to the conclusion that there had been a violation of Article 6(1) of the ECHR, it also decided that that finding constituted in itself sufficient just satisfaction of any non-pecuniary damage suffered by the Appellant. In the course of their judgment they made it clear that the right to silence under Article 6(1) is not an absolute right and so the drawing of adverse inferences from an accused's silence, either at trial or at police interviews, could not of itself be considered incompatible with the requirements of a fair trial. The court went on to say that it would be incompatible with the right to silence to base a conviction solely or mainly on the accused's silence but that fact should nevertheless not prevent an accused's silence, "in situations which clearly call for an explanation from him, from being taken into account in assessing the persuasiveness of the evidence adduced by the prosecution." (Paragraph 58)
30. The ECtHR stated 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. Of particular relevance are the terms of the trial judge's direction to the jury on the issue of adverse inferences".
31. The ECtHR in the course of their judgment also drew attention to certain aspects of the summing up which were undoubtedly fair to the Appellant. However, they added that "at trial the [Appellant] explained that he did not respond to police questioning since he had been advised not to do so." He was prepared to elaborate on this reason and to testify to the content of his solicitor's advice. Yet, the trial judge emphasised to the jury on two occasions that there was "no independent evidence" of what the solicitor had said at the police station without making any reference to the fact that the Appellant had been prepared to provide details of his exchanges with his solicitor, and that he had manifested his willingness to cooperate with the police on the way to the police station. The ECtHR added that it cannot "be overlooked that the solicitor's advice appeared in the record of the police interview and was entirely consistent with the [Appellant's] own explanation for his silence". Further, they referred to the fact that the Appellant did not seek to rely on any new facts or circumstances.
32. These were matters that the ECtHR considered went to the plausibility of the Appellant's explanation which "as a matter of fairness, should have been built into the judge's direction in order to allow the jury to consider fully whether the [Appellant's] reason for his silence was a genuine one, or whether, on the contrary, his silence was consistent only with guilt and/or his reliance on legal advice to stay silent merely a convenient self-serving excuse". The ECtHR also stated that, in circumstances where it was impossible to ascertain the weight (if any) given to the Appellant's silence, it was crucial that the jury were properly directed on this matter. Their conclusion was that the jury's consideration was "not confined in a manner which was compatible with the exercise by the [Appellant] of his right to silence at the police station". For these reasons there had been a breach of Article 6(1).

Specimen Directions

33. The Court of Appeal and Mr. Perry relied on the fact that the summing up of the judge was consistent with the relevant specimen direction prepared by the Judicial Studies Board ("JSB"). This direction was issued in May 1996 and is limited to three short paragraphs. As the ECtHR pointed out, however, the law has moved on since that specimen direction was issued. Those subsequent developments have made the law considerably more complex, and there have now been a series of decisions by both domestic courts and the ECtHR that have to be taken into account if a judge is not going to fall into error in his summing up. Fortunately, however, the JSB has kept pace with those developments and issued successive versions of the specimen direction to assist judges with their summing up in this difficult area.
34. The specimen direction has necessarily grown longer and, in addition, is accompanied by numerous notes. The latest specimen direction starts by emphasising the desirability of any proposed direction being discussed with counsel before closing speeches on the nature of the direction and suggests that the discussions should start by a consideration whether any direction under section 34 should be given. This is an approach that we would strongly endorse. Indeed for reasons that we will indicate later, we have real reservations whether the present case was a suitable case for a section 34 direction at all. But, as far as is known, (counsel appearing before us are different from those who appeared in the court below) there was no such discussion in this case.
35. The current specimen direction is readily available and is reproduced in both Archbold and Blackstone so it is not necessary to set it out in this judgment. However, it is important to note that the specimen direction now identifies at least three different conclusions that a jury may draw from the failure of an accused, when interviewed, to give facts which are subsequently relied upon by him as part of his defence. Those specifically mentioned are that the defendant either had no answer, or had no answer that he then believed would stand up to scrutiny, or has since invented or tailored his account to fit the prosecution's case. The specimen direction also makes it clear that the jury should be told only to draw such a conclusion if they think "it is a fair and proper conclusion" and that they are therefore satisfied about three things:

"First, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny; third, that apart from his failure to mention those facts, the prosecution's case against him is so strong that it clearly calls for an answer by him."

36. The specimen direction also deals specifically with the situation where, as here, legal advice to remain silent is relied upon. It states that the jury should be told that if they "accept the evidence that he was so advised, this is obviously an important consideration: but it does not automatically prevent [them] from drawing any conclusion from his silence." The jury should "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 might harm his defence". The specimen direction then requires the judge to set out the relevant circumstances of the particular case and suggests that the jury should be asked "whether the defendant could reasonably have been expected to mention the facts on which he now relies. If, for example you considered that he had or may have had an answer to give, but genuinely relied on the legal advice to remain silent, you should not draw any conclusion against him. But if, for example, [they] were sure that the defendant had no answer, and merely latched onto the legal advice as a convenient shield behind which to hide, [they] would be entitled to draw a conclusion against him…".
37. In general, although the latest specimen direction was of course not available to the trial judge, when his direction to the jury is compared with the specimen direction direction, the judge's summing up still emerges relatively unscathed. Most of the matters identified are covered. In particular he left it to the jury to decide "whether it is fair and proper to draw those adverse inferences". However, as against this there are the criticisms of the approach of the judge indicated in the ECtHR decision. In particular, the jury were not told that if they came to the conclusion that he was advised by his solicitor as he contended, this would be a matter of significance in the Appellant's favour.

The Law

The HRA

38. The HRA was not in force at the time of the Appellant's trial and the Act is not retrospective. However, the fact that the Act is not retrospective does not mean that decisions of the ECtHR should be ignored or regarded as irrelevant. The general effect of Article 6 is to guarantee a fair trial. This has long been a requirement of our domestic law. There is a problem, however, in that section 2 of the Criminal Appeal Act 1968 (as amended), when setting out the test for determining whether an appeal should be allowed, does not expressly refer to the fairness of the trial. Instead the test is whether the Court "think that the conviction is unsafe". While there is this distinction in language, its importance should not be overemphasized.
39. The distinction in language was considered in a manner which both parties accept in R. v. Hanratty (Deceased) [2002] 2 CrAppR 30. In the judgment in that case, reference is made to the speech of Lord Bingham of Cornhill in R. v. Pendleton [2002] 1 CrAppR 34. The Court then said; "the most important lesson to be learnt from this part of Lord Bingham's speech is that Parliament's overriding intention… in the 1968 Act, is that it should be this Court's central role to ensure that justice has been done and to rectify injustice". Considering the effect of the passage of time, this Court went on to say [at paragraph 98 and 100]:

"The non-technical approach is especially important in references by the Commission such as this since standards may have changed because of the passage of time. For understandable reasons, it is now accepted in judging the question of fairness of a trial, and fairness is what rules of procedure are designed to achieve, we apply current standards irrespective of when the trial took place. But this does not mean that because contemporary rules have not been complied with a trial which took place in the past must be judged on the false assumption it was tried yesterday. Such an approach could achieve injustice because the non-compliance with rules does not necessarily mean that a defendant has been treated unfairly. In order to achieve justice, non-compliance with rules which were not current at the time of the trial may need to be treated differently from rules which were in force at the time of trial. If certain of the current requirements of, for example, a summing up are not complied with at a trial which takes place today this can almost automatically result in a conviction being set aside but this approach should not be adopted in relation to trials which took place before the rule was established. The fact that what has happened did not comply with a rule which was in force at the time of trial makes the non-compliance more serious than it would be if there was no rule in force. Proper standards will not be maintained unless this Court can be expected, when appropriate, to enforce the rules by taking a serious view of a breach of the rules at the time they are in force. It is not appropriate to apply this approach to a forty year-old case.

The question of whether a trial is sufficiently seriously flawed, so as to make a conviction unsafe because it does not comply with what would be regarded today as the minimum standards, must be approached in the round, taking into account all the relevant circumstances, and this is what we propose to do notwithstanding the fact that Mr. Sweeney did not seek to rely on the different standards which existed at the time of the trial and the standards today."

40. Mr. Jennings QC for the Appellant relied in particular on the decision of this Court in R. v. Allan [2004] EWCA Crim 2236, where Lord Justice Hooper specifically rejected the argument that the decision of the ECtHR was irrelevant (paragraph 112).

The Development of the Law

41. It is not necessary for us to set out the various authorities which have resulted in the development of the law. The position is clearly set out by Lord Bingham in the recent case of R. v. Webber [2004] 1 WLR 404. As Lord Bingham states (at paragraph 20): "section 34 has, predictably, spawned a considerable body of Court of Appeal authority." He then examines those authorities. A case to which Lord Bingham referred was R v Bowden [1999] 1 WLR 823. In Bowden this Court (at page 827) indicated in relation to sections 34 to 37, that "there is nothing in any of these sections to suggest that Parliament intended in any way to modify the existing law on legal professional privilege". As to this dictum Lord Bingham stated: "we would not wish to modify that statement in any way. It is indeed important, if the statutory provisions are not to be an instrument of unfairness or abuse, that the statutory safeguards are strictly observed, that jury directions are carefully framed and, in cases under section 34, that care is taken to identify the specific facts relied on at trial which were not mentioned during questioning."
42. Having surveyed the earlier authorities, Lord Bingham advocated common sense rather than a narrow or pedantic approach as to what is a "fact" for the purposes of section 34. He added that a defendant relies on a fact or matter in his defence not only when he gives or adduces evidence of it, but also when his counsel puts a positive case to the prosecution witnesses. Lord Bingham also stressed that "the specific matters which the appellant had failed to mention at interview" needed to be identified.

Legal Advice

43. Where the reason put forward by a defendant for not answering questions is that he is acting on legal advice, the position is singularly delicate. On the one hand the Courts have not unreasonably wanted to avoid defendants driving a coach and horses through section 34 and by so doing defeating the statutory objective. Such an explanation is very easy for a defendant to advance and difficult to investigate because of legal professional privilege. On the other hand, it is of the greatest importance that defendants should be able to be advised by their lawyer without their having to reveal the terms of that advice if they act in accordance with that advice. Again, there have been a number of authorities. Here Mr. Jennings QC relied on a series of cases including R v Inman [2002] EWCA 1950 and R v Chenia [2003] 2 CrAppR 6. Chenia, like this case, was a case where the defendant was purporting to rely on a solicitor's advice when the HRA was not in force.
44. However, we consider that the case which we should next consider for its helpful judgment by Lord Justice Auld is R v Hoare & Pierce [2004] EWCA Crim 784. The Court was there dealing with an argument, founded on R v Betts & Hall [2001] 2 Cr. App. R. 16, that it was a misdirection to direct the jury to consider the reasonableness of the defendant's reliance on legal advice to remain silent; Lord Justice Kay had said in that case "It is not the quality of the decision but the genuineness of it that matters". It was contended that this approach was inconsistent with the later decisions of the Court in R v Howell [2003] EWCA Crim 01; [2003] Crim. L.R. 405 and R v Knight [2003] EWCA Crim 1977; The Times, August 20, 2003.
45. Lord Justice Auld in Hoare & Pierce disagreed that there was this inconsistency. In his judgment he said [at paragraph 51]:

"In our view, there is no inconsistency between the approach of Kay LJ in Betts & Hall and that of Laws LJ in Howell and. Knight. As we have said, it is plain from Kay LJ's judgment that, even where a solicitor has in good faith advised silence and a defendant has genuinely relied on it in the sense that he accepted it and believed that he was entitled to follow it, a jury may still draw an adverse inference if it is sure that the true reason for his silence is that he had no or no satisfactory explanation consistent with innocence to give. That is of piece with Laws LJ's reasoning in Howell and Knight that genuine reliance by a defendant on his solicitor's advice to remain silent is not in itself enough to preclude adverse comment."

Lord Justice Auld added [at paragraphs 54 and 55]:

"It is not the purpose of section 34 to exclude a jury from drawing an adverse inference against a defendant because he genuinely or reasonably believes that, regardless of his guilt or innocence, he is entitled to take advantage of that advice to impede the prosecution case against him. In such a case the advice is not truly the reason for not mentioning the facts. The section 34 inference is concerned with flushing out innocence at an early stage or supporting other evidence of guilt at a later stage, not simply with whether a guilty defendant is entitled, or genuinely or reasonably believes that he is entitled, to rely on legal rights of which his solicitor has advised him. Legal entitlement is one thing. An accused's reason for exercising it is another. His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is - a distinction with which Professor Di Birch in her commentary in the Criminal Law Review in Howell appears not to have grappled, in asserting that the question must surely be "has the suspect genuinely relied on his solicitor's advice".

The question in the end, which is for the jury, is whether regardless of advice, genuinely given and genuinely accepted, an accused has remained silent not because of that advice but because had no or no satisfactory explanation to give. For this purpose, but only for this purpose, section 34 in its provision for the drawing of an adverse inference, qualifies a defendant's right to silence. However, it is still for the prosecution to prove its case, section 38(3) of the 1994 Act ensures that a finding of a case to answer or a conviction shall not be based solely on such an inference."

46. In our judgment, in a case where a solicitor's advice is relied upon by the defendant, the ultimate question for the jury remains under section 34 whether the facts relied on at the trial were facts which the defendant could reasonably have been expected to mention at interview. If they were not, that is the end of the matter. If the jury consider that the defendant genuinely relied on the advice, that is not necessarily the end of the matter. It may still not have been reasonable for him to rely on the advice, or the advice may not have been the true explanation for his silence. In Betts & Hall, Lord Justice Kay was particularly concerned [at paragraph 54] with "whether or not the advice was truly the reason for not mentioning the facts." In the same paragraph he also says "A person, who is anxious not to answer questions because he has no or no adequate explanation to offer, gains no protection from his lawyer's advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts". If, in the last situation, it is possible to say that the defendant genuinely acted upon the advice, the fact that he did so because it suited his purpose may mean he was not acting reasonably in not mentioning the facts. His reasonableness in not mentioning the facts remains to be determined by the jury. If they conclude he was acting unreasonably they can draw an adverse inference from the failure to mention the facts.
47. The current issue of the Judicial Studies Board's specimen directions was prepared in the light of the Court's decision in R v Betts & Hall. In their explanatory note 18 (at page 40.4), referring to R v Howell, the authors referred to the apparent conflict of authority and said that until it was resolved the specimen direction would follow R v Betts & Hall which is more favourable to the accused. Thus the specimen direction asks the jury to consider whether the defendant genuinely relied on the legal advice to remain silent. We understand that in the light of R v Hoare & Pierce a revision to the specimen direction is now in draft and will be issued shortly. Under the revised direction the jury will be asked to consider whether the defendant genuinely and reasonably relied on the legal advice to remain silent.

Our conclusions

48. The summing up in the present case did not match up to these standards, even though it accorded with the specimen direction in existence at the time. The judge never directed the jury to consider the reasonableness, let alone the genuineness, of the Appellant's reliance on his solicitor's advice as the reason why he did not answer questions in interview.
49. The crucial passage of his direction was:

"You decide what you make of the reasons given for not answering. If you thought that the reason given was a good one, then of course you would not hold it against them."

The need for a proper direction on this was all the more important since this was not a case in which the primary adverse inference for the jury to draw was later fabrication, the Appellant having made unsolicited remarks on his arrest which foreshadowed (though in much less detail) his defence at trial. Thus the primary adverse inference which the jury could draw in this case was not that he made up his story later, but that he did not think his story would stand up to examination.

50. Mr. Perry accepted that although this would not be apparent on the then state of the authorities, when the judge gave the directions as to section 34 inferences his summing up did involve a misdirection.  We have already referred to the criticism of this passage by the ECtHR, which we accept.   Mr. Perry sought to rely upon the Appellant's failure to call any evidence from his solicitor, but this is to ignore both the fact that the solicitor made clear at the police interview that she had given such advice, and that the Appellant had been prepared to give an account of his defence both before he was advised by his solicitor and in a subsequent interview.
51. More importantly, the Appellant had already made it clear to the Police before receiving legal advice that the core of his defence was that Mohamoud had jumped from the window.  This last point, coupled with the fact that he had made it clear that he was prepared to give evidence as to the advice he had received (albeit that this was not pursued by the advocates), suggest that a section 34 direction may not have been appropriate in this case at all, because the evidence before the jury was consistent with the Appellant having acted genuinely on the advice of his solicitor.  His being silent could not result in the prosecution being ambushed or taken by surprise.  The advice which the Appellant was given might have been justified because the Appellant was unaware of the evidence on which the prosecution were relying. The judge might have concluded that to draw an adverse inference from the Appellant's silence would, on the facts, be dangerous and in any event unnecessary (as is apparent from Mr. Perry's principal argument for upholding the conviction).
52. As we have indicated earlier in this judgment, this issue needed to be resolved in discussion between the judge and counsel in the absence of the jury after the close of the evidence. If the judge had been persuaded that it was a proper case for a section 34 direction to the jury, it was necessary to identify with some precision the relevant adverse inference or inferences which the jury might legitimately draw.
53. Having come to the conclusion that there was a misdirection, there remains the issue as to the effect of that misdirection. Did it make the conviction unsafe? This is the most difficult issue in this case. Mr. Perry vigorously submits that this is not the consequence. Whether he is correct depends upon the evidence we have already set out. Can we be satisfied that the unfairness which was inherent in the jury being misdirected would not have affected the jury's verdict?
54. Mr. Perry's principal contention is based on the fact that the jury were told that if they did not accept Mohamoud's evidence, that was, in effect, the end of the case. Yet, they convicted not only the Appellant but the other defendants too, so the jury must have accepted Mohamoud's evidence.
55. Mr. Perry also refers to the fact that Michelle Whyte gave evidence of finding the window closed which, in the absence of any other evidence, he submits, means that Mohamoud could not have jumped through the window, as if he had, he could not have closed the window.
56. We recognise the force of Mr. Perry's arguments, but in the end they do not satisfy us that we can safely put on one side the unfairness caused by the misdirection. Mohamoud's evidence was not without its inconsistencies and Michelle Whyte's evidence was flawed, as is indicated by the offences of which she was herself convicted. Mr. Perry's argument implies that the jury must have been sure of the correctness of Mohamoud's evidence irrespective of any adverse inference they might have drawn pursuant to section 34. But the fact is that the drawing of adverse inferences was left to them, and in an unsatisfactory manner. Such inferences can give added strength to the Crown's case against a Defendant. It can tip the balance from being not sure of the Crown's case to being sure. It can give confirmation of the jury's preference for the Crown's case, of which (without that confirmation) they might not have been sure. It is impossible to say whether the jury would have reached the same conclusion were it not for this element in their deliberations. And if the jury drew a further adverse inference from the failure of the Appellant to call his solicitor to explain the advice which she had given, this could have had a significant effect on the verdicts at which they arrived.
57. In our judgment it follows that the convictions are unsafe. We therefore quash the Appellant's convictions.
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THE LORD CHIEF JUSTICE: For the reasons set out in the judgment which is handed down we allow this appeal and quash the conviction. Mr Perry?

MR PERRY: May it please your Lordships, the representation is as before.

THE LORD CHIEF JUSTICE: Yes, so I see. We have had the advantage of two skeleton arguments, for which we are most grateful.

MR PERRY: My Lord, first of all, we are very grateful to your Lordships for the clear judgment. We set out our application. It is of course a matter for your Lordships. I do not know whether I can assist your Lordships further?

THE LORD CHIEF JUSTICE: I do not think so. Mr Jennings?

MR JENNINGS: My Lord, I need not trouble you with the details contained in the document. I say only one thing, which is the reason that Mr Beckles is not here -- indeed why he was not here at the hearing -- is that because he is in an open prison at the moment and he was told by the prison that if he came here he would be remanded in a closed prison.

THE LORD CHIEF JUSTICE: Yes, it is an unfortunate fact of the situation within the prison service at the moment that, because of accommodation problems, difficulties of the sort you have indicated arise.

MR JENNINGS: That is why he is not here.

THE LORD CHIEF JUSTICE: Yes. We have seen the early release and recall sections report, and we will take that into account.

(The court conferred)

THE LORD CHIEF JUSTICE: We think that there should be a retrial in this case. In those circumstances we have to give certain directions. We direct that a fresh indictment be preferred. We direct that the appellant be re-arraigned on the fresh indictment within two months in accordance with section 8(1) as amended by section 43 of the Criminal Justice Act 1988. We make the following supplementary orders. We direct that the appellant be held in custody or released on bail as appropriate, but any application for bail will have to be made elsewhere. We order a representation order for leading counsel, junior counsel and a solicitor for the retrial. The venue for trial should be determined in accordance with the directions of the presiding judge for the South Eastern Circuit where the original trial took place.