England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		26th July 2007

Lord Justice Moses:

1. This is an appeal against a conviction of 21st June 2006 at Snaresbrook Crown Court. The appellant was convicted of robbery. The following day he was convicted of possessing a firearm when committing an offence, of attempted robbery and attempting to cause grievous bodily harm with intent. He was sentenced to imprisonment for public protection with a minimum term of ten years.
2. On 12th September 2005 an armed robbery took place at a jeweller's in Ilford Lane in London. The robbers were wearing balaclavas, dark clothing and gloves. The robbery was planned. They had managed to enter the jeweller's through a hole they had made in a stud wall with an adjoining flat. One of the robbers had a firearm, another a large kitchen knife. When employees arrived for work, they were threatened and restrained and secured with handcuffs and tape. Jewellery in the region of £250,000 was stolen. The robbers made good their escape, when they were disturbed, through the rear of the building into an alleyway.
3. It was alleged that this appellant, armed with a firearm, then approached two cable employees who were finishing a job of laying a cable. It was alleged that this appellant demanded van keys from one of the employees. The employee stalled before handing the keys over. The man searched him for the keys. Another colleague was also held up by the same man as he tried to get the keys. He saw that something had been dropped. It was later discovered to be the balaclava held by the robber. A car then pulled into the road, Rutland Road. It was a red Fiat Bravo. The robber fired at the cable layer and his colleague. By some good fortune the bullet did not penetrate that man. It hit some coins and was deflected. Another bullet fired missed the other man altogether, so they were not injured, but we stress, and this is important, that it is remarkable good fortune that neither man was killed. The red Fiat Bravo then escaped with the men on board.
4. As one would expect the evidence of the eye witnesses, particularly of the cable men confronted with this appalling and terrifying scene of violence, was inadequate for any sensible identification, save that the defence were entitled, and did, deploy that evidence to show that descriptions given did not match this appellant. But what did match this appellant was saliva. It was found on the balaclava abandoned near the scene of the shooting. The DNA showed that it matched this appellant. A glove was also found. On that glove was discovered DNA matching this appellant. Similarly a plastic bag found in the flat through which the robbers had entered the jeweller's was found to have DNA and fingerprints on Ribena cartons and straws contained in it. These matched the appellant. In the passenger door of the Fiat Bravo, which was discovered, a plastic bag also bearing the fingerprints of the appellant was found. The police watched the appellant and noticed him in the vicinity of an address in Agar Road in Hornsey. He was found later to have a key to that address on a fob. Within the flat was a plastic bag of a type used by the jeweller's and on it was writing identified by one of the employees.
5. The appellant's defence in relation to the finding of that significant evidence was that those items had either been left there by associates of his, and by the robbers, and by accident or deliberately to implicate him.
6. The first ground of the appeal concerns the propriety of cross-examination by the prosecution as to the failure of this appellant when he came to give evidence to tell the police of his whereabouts at the time of the robbery in Ilford. When he came to give evidence, he gave evidence in accordance with an earlier notice he had served of alibi, that he had been with a girlfriend at the relevant time. He had been with her the night before and had spent certainly all morning with her and had parted in the afternoon. If that was right, or may have been right, the robber who fired the gun could not have been him.
7. Thus it was that the prosecution wanted to examine why it was, when interviewed, he had not told the police where he was, although they had identified the time and place of the robbery. His explanation was that at the time he had been interviewed he could not remember where he was.
8. During the course of cross-examination by prosecution counsel, counsel sought to establish that the alibi he was now giving to the jury was something that he could and should have said to the police, if it was the truth. It was in that context the question as to whether he had told his solicitor, representing him at time of the interview, arose, and whether, in order to advance that questioning, legal professional privilege had been waived.
9. The prosecution said that it had in reliance upon what the appellant's then solicitor had said at the time in the course of the interview. He had said this:

"As Mr Hall-Chung's solicitor I can say at the outset that I have advised him to exercise his right to silence because I am concerned that I do not have sufficient information upon which I can adequately advise my client and the reasons include the fact that I have been advised there is forensic evidence but I have not been told the nature of this and I have also been told that there might exist CCTV without receiving information on that."

10. The prosecution said that by making that statement the solicitor had waived legal professional privilege on behalf of this appellant. The prosecution, seeking to take advantage of that waiver, suggested, by way of cross-examination, that the appellant's silence at the time was not because of that advice, but rather to conceal the truth that he had indeed been at Ilford.
11. This was, certainly if legal professional privilege had been waived, an appropriate line to take, since the essential question is, as is now well familiar, whether it was the advice, rather than the absence of a satisfactory explanation, for his silence which caused the appellant to make no comment when questioned at interview.
12. The point taken before us, as it was before the judge, is that in the instant case the defence never sought to adduce the evidence of the basis of the advice given by the solicitor. The evidence of the giving of the basis of the advice was adduced by the prosecution, so, it was contended, either that legal professional privilege had not been waived by this appellant, or alternatively, even if it had, section 78 of PACE, in other words fairness, demanded that the cross-examination should not be permitted.
13. This submission advanced by Mr Ivers on behalf of the appellant rests upon an analysis of earlier authorities and particularly R v Bowden [1999] 2 Cr App R 176. In that case the defence had elicited evidence of the grounds on which advice not to make any comment had been adduced. Lord Bingham CJ, giving the judgment of the court, took the view that by adducing evidence, not only of the advice to remain silent but the grounds upon which that advice had been given, waived legal professional privilege.
14. Similarly in R v Loizou [2006] EWCA Crim 1719 this court took the view that legal professional privilege had been waived where the defence had asked questions in-chief about the grounds upon which the legal advice to remain silent had been given and the prosecution were permitted to cross-examine to suggest recent fabrication after that voluntary information had been given by the defence.
15. The appellant points out that in neither of those cases had the prosecution adduced evidence of the grounds upon which the advice to remain silent had been given. Whereas, in this case, the asserted waiver of legal professional privilege depended upon evidence adduced by the Crown.
16. In our judgment it makes no difference whether the prosecution or the defence adduce evidence of the events which, it is alleged, constituted waiver. The essential question is whether legal professional privilege was waived, not at what stage it was waived. Where a solicitor states in the presence of his client that his client will not answer questions and gives reasons or grounds why that advice is given, then legal professional privilege has been waived by that client through the mouth of his agent acting within the scope of his authority.
17. At page 183 Lord Bingham CJ made that point:

"Had the prosecution chosen to call evidence of that statement [that is, not only of the advice but the grounds upon which it was given], as they would have been entitled to do the appellant or Mr Draycott [the solicitor] (if called at the trial) could have been cross-examined at trial about the basis of the advice and its factual premises."

18. Although that observation was strictly obiter, it has been repeated in a number of cases, for example, in Wishart [2005] EWCA Crim 1337 at paragraph 21 and in Loizou itself. It has never been questioned. It is small wonder, since, as we emphasise, it matters not when that privilege has been waived, the essential question is whether the events disclose that it has in reality been waived.
19. That is not to say that the circumstances in which it was waived and how that waiver is sought to be deployed by the Crown are not important factors which the judge must consider in deciding whether to exclude the evidence, or a line of cross-examination, pursuant to section 78. A judge must not assume that the Crown is entitled to take advantage of the waiver in every case, where, as a matter of law, it has been waived. He must exercise independent judgment as to whether it is fair to permit the prosecution to exploit that waiver.
20. In the instant appeal it is sought to contend that it was unfair to permit the prosecution to cross-examine in the way we have identified. We do not agree. The appellant sought to explain his failure to mention his alibi earlier, particularly at the time of the interview. It was important for the prosecution to explore before the jury the issue as to why the solicitor relied upon absence of disclosure as a basis for silence, rather than at least permitting his client to say that at the time he could not remember. That was important in order to lend support to the submission that it was the appellant's wish not to disclose where he was which led to his refusal to make any comment: not that he did not know where he was, still less that he was acting on the advice of his solicitor, since, it was asserted, he knew all along that he was at Ilford at the time and could hardly have forgotten.

It would have been misleading, in our judgment, if, by virtue of the asserted legal professional privilege, the appellant would have been heard to say he could not remember at the time where he was without being challenged as to why he could not remember at the time of the solicitor's advice and without the possibility of a suggestion that the solicitor's advice was used as a cloak to shield his embarrassment at the truth. We reject this ground.

The next ground advanced by Mr Ivers on behalf of the appellant relates to cross-examination of the alibi witness called on behalf of the appellant. She was undoubtedly a crucial witness, since if she was, or may have been, telling the truth the robber could not have been this appellant.

The prosecution had not had an opportunity of questioning the alibi witness in advance. There was some difficulty about the address, but it certainly could have been anticipated by them that she would be called and she was. She gave her evidence and was then cross-examined by prosecuting counsel without any advance notice as to an incident that had happened shortly before she was giving evidence. The incident happened back on 26th May 2006. It was suggested that in consequence of a quarrel, the details of which are irrelevant, she had taken an overdose and had clearly been very upset at the time, to such an extent that the police had been called.

After the cross-examination an issue arose as to whether the cross-examination was proper. Mr Ivers, who sensibly had not sought to challenge the right to indulge in such cross-examination during its course lest it look as though he was seeking to protect the witness, did take the opportunity to assert that it was wrong for that cross-examination to have taken place by virtue of the provisions of the Criminal Justice Act 2003 in relation to bad character. He contended that if the Crown were to seek to adduce this evidence as evidence of bad character pursuant to section 100, proper notice should have been given, and, in any event, it was not relevant to any important matter.

The judge took the view that the evidence about the witness's conduct shortly before she gave evidence did not fall within section 100. In order to reach that conclusion he was required to have regard to section 98 which identifies bad character as meaning evidence of or of a disposition towards misconduct. Misconduct is defined in section 112 (the interpretation section) as:

"Meaning the commission of an offence or other reprehensible behaviour."

21. In our view the material which the prosecution sought to adduce did not fall within section 100 at all. It was not evidence of reprehensible behaviour within the meaning of section 112. It clearly went to the reliability of the witness's evidence. If she had behaved in such an extravagant way as was described by the Crown, however unfortunate the circumstances, that was material which the prosecution was entitled to adduce as going to the reliability of her evidence, but it was not evidence of reprehensible conduct.
22. We are fortified in that view by a decision of this court in R v Gary Osbourne [2007] EWCA Crim 481 in which this court took a similar view in a different context in relation to behaviour of the defendant to a charge of murder. In that case the prosecution had adduced evidence, with the endorsement of the judge, that he had been seen earlier having an argument with a partner over the care of a very young child. That the court regarded as not being reprehensible. Furthermore, they took the view that it was wrong of the judge to permit that evidence to be given.
23. In the instant appeal, although the judge approached the matter in a way with which we do not agree, he nevertheless came to the right conclusion. The prosecution was entitled to cross-examine about it. It was relevant. We add, however, that it was unfortunate that the matter arose in this way. The prosecution had in their possession a police report (known as a CRIS report) and that they had not disclosed. We are far from saying they were under any obligation to do so; that was a matter for prosecuting counsel. Some of us when prosecuting would have done so, others would not. There can be no hard and fast rule about it. More importantly, however, is the time at which the dispute arose.
24. We well understand why prosecution counsel did not want to forewarn the witness about this; that was a decision for him. But as the witness came to the witness box, or at the moment when she was being called, that was the time we think that prosecuting counsel in this modern day and age ought to have mentioned the matter so that the judge could have ruled upon it in advance. We say that for this reason. The ruling came when, in a sense, the damage had been done. Of equal importance is the pressure that put on defending counsel. Defending someone, particularly in relation to a very serious offence and particularly where the evidence is strongly against the client, is an onerous and important task and it distracts and makes more difficult that task if disputes such as these arise without proper opportunity to consider them and marshal the arguments which need to be used in order to resist them. That cannot always be done. We think that Mr Ivers was placed in a difficult and unnecessarily arduous position by being made to deal with the matter at the stage he did, but, for the reasons we have given, we do not think that any unjust harm was done to the appellant. In those circumstances we reject that ground of appeal.
25. The final argument in relation to the appeal relates to what happened when the jury returned their verdict. Within six hours the jury returned an unanimous verdict of guilty of robbery. The way the case had been put against this appellant throughout, reiterated by the judge, was that the jury could only convict him of the robbery if they were also sure that it was he who had armed himself with the gun and fired it. In short, all the counts stood or fell together. One would have thought, as no doubt those present were anticipating, that once the jury had reached the verdict of robbery, they would also reach unanimous verdicts in relation to the other counts, but they did not.
26. After about six hours they returned with a note for the judge which clearly dealt with the state of their deliberation in terms which it was not appropriate for the judge to disclose to counsel or the appellant. He then gave a Watson direction without inviting submissions. After further deliberation the jury returned majority verdicts in relation to the other counts.
27. It therefore appears, as Mr Ivers has said, that two of the jury had not faithfully followed the directions they had been given. There could be no logic in being sure about robbery, but less sure about the offences that went to the firearm and the shooting of the two men laying the cable, bearing in mind the way the prosecution put its case. However, the majority of the jury did faithfully follow the direction.
28. The judge was entitled in the light of the note to give a Watson direction. His judgment must be respected since neither we nor the appellant or his counsel know the terms of that note. We do not think that the fact that the Watson direction was given and the fact that two of the jury do not appear to have followed the directions they were given as to their approach to the case renders the verdicts unsafe. Every judge may be faced with a difficulty if it appears from a note that a jury is being unnecessarily intransigent. He has to make a decision. There is nothing that we have heard that shows the decision was outwith the range of reasonable decisions that could have been made faced with the note. We would only tentatively suggest that in this case, as in so many others, it might be far better for a judge to refuse to accept a verdict on one count, but rather to tell the jury, even if they have finished their deliberations, or think they have finished, in relation to one to wait until they have finished them in relation to all before returning any verdict. In those circumstances, we reject that ground of appeal.
29. There remains only an attempt to revive a ground of appeal which was dismissed by the single judge which relates to the admission by the judge pursuant to the 2003 Act of previous convictions of this appellant as showing a deposition towards being a man who would handle and fire firearms. It was admitted that on 16th May 2002, when he was really only a young man, this appellant was convicted of offences of illegal possession of a firearm and ammunition. His DNA was found on a .38 Smith and Weston revolver and he had admitted that he had handled and pulled the trigger of that weapon with a view to buying it. But a few months later, on 20th December 2002, he was convicted of illegal possession of a firearm and ammunition. There had been found at an address associated with him a 9 millimetre self-loading pistol and cartridges. Again, his DNA was found on that firearm.
30. It is beyond argument that those convictions were relevant to the charges against him in this case because they showed a propensity to handle and indeed use firearms and ammunition. In those circumstances, in our view, not only was the judge correct to allow the admission of those convictions, he would have been quite wrong to refuse to do so. For that reason this application is refused and this appeal against conviction is dismissed.
31. There remains then the question of sentence. This appellant was sentenced, as we have said, to imprisonment for public protection with a minimum term of ten years. It is said that that minimum term was manifestly excessive. Our attention has been drawn to the fact that that which it represents, which is a notional determinate sentence of 20 years, is reserved, so it was contended, for far more serious offences, such as what was described as a sophisticated raid on a security van: R v Mehmet Arif and others (1994) 15 Cr App R(S) 172, or an armed robbery on a post office, such as in Stone and others (1990) 12 Cr App R(S) 59 where only a ten year sentence was passed by the Court of Appeal.
32. In our view this was a severe sentence, having regard to the age of this young appellant, he is now still only 25, and it must always be a matter of great regret at having to pass what will to him and his family appear to be swingeing sentences. But, nevertheless, these were vulnerable premises, the robbery was carefully planned, and we draw attention to the quite vicious attempt to shoot those innocent bystanders. In particular, we reject the submission advanced on his behalf that the shooting was less serious because apparently the bullets missed and caused no harm. We have already emphasised by what good fortune it was that the bullet struck some coins in the pocket of one. Had they not done so, the effects are all too easy to visualise. To shoot at those two men when it was quite unnecessary for the purposes of making good his escape reveals how serious this offence was. In those circumstances, our view is that the minimum period of ten years was not manifestly excessive. We reject the application in relation to sentence.