England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Monday, 12 March 2007

1. THE VICE PRESIDENT: On 4th December 2000 in the Crown Court at Liverpool, this appellant was convicted of conspiracy to supply controlled drugs contrary to section 1(1) of the Criminal Law Act 1977 and on 5th February 2001 before the trial judge, His Honour Judge Maddison, he was sentenced to 24 years' imprisonment. He appealed against conviction and sentence and on 30th October 2003 the full court dismissed his appeal against conviction and sentence. The matter comes back before this court upon a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995.
2. The basis of the reference is set out in the statement of reasons which runs to some 221 paragraphs. It is dated 30th June 2006. Put shortly, the basis of the reference is that there was a misdirection or there were misdirections by the judge in relation to the application in this case of the provisions of section 34 of the Criminal Justice and Public Order Act 1994, the position being that this was one of those cases in which the appellant largely made no comment answers in his interviews with the police. There was one further ground of appeal upon which the appellant sought leave to rely which related to the judge's refusal to permit the appellant's defence statements to be placed before the jury, but that ground is no longer pursued.
3. The facts which gave rise to the prosecution can conveniently be taken from the judgment of this court in the original appeal. The judgment in that appeal is at [2003] EWCA Crim 3182 and we take the statement of facts from paragraphs 4 and 5 of the judgment. To put those paragraphs in context it is necessary just to say that the trial in question involved a substantial number of other defendants, ten in number, and the conspiracy was alleged to have spread over the period from 1st June 1998 to 28th February 2000. The general nature of the evidence, as is so often the case in this type of prosecution, comprised evidence from those who carried out reconnaissance of the various members of the conspiracy, the monitoring of telephone calls, the finding on a number of occasions of heroin and other drugs in the possession of various conspirators and finally the finding of not only heroin at what was described as the 'safe house', but also a substantial quantity of money in the possession of this appellant.
4. Turning then to the two paragraphs in the judgment to which we have referred, they read as follows:

"The prosecution evidence in relation to Lowe was that he was in regular contact with the other members of the conspiracy. He made two trips abroad at the same time that Frederick was abroad. When, in July 1999, Ellis was stopped in France in possession of £25,000 in cash and using a false name, Lowe arranged to have documents given to Ellis by the French authorities translated. On 1st August 1999 Lowe met Martin Neary in Sefton Park on the day of Neary's eighth and Frederick's third trip abroad. Neary travelled to France in motorcars dishonestly acquired by Lowe and bearing false number plates. On 5th October 1999 Lowe boarded the Hull-Rotterdam ferry. On 9th October he arrived at Liverpool by air from Amsterdam. On 15th November Coker travelled from Lowe's house in Smithdown Lane, Liverpool to Stephen Smith's house, carrying a quantity of what the prosecution said were drugs. The following day Lowe, carrying heroin and 10,000 ecstasy tablets, went with Coker to her house and shortly afterwards the drugs were delivered to English. On 19th December Lowe met Parkinson in Seaforth where the two obtained a bag which they took to Smith's house in Hawthorne Road. On 29th December, shortly after Frederick had returned from one of his foreign trips, Lowe, with Ellis who was carrying a heavy bag, went to premises known as 'A Touch of Steel' in Wavertree Road, Liverpool. A bag was later taken from there to 107 Upper Parliament Street. On 30th December Lowe was involved in transferring 9 kilograms of heroin, recently imported by Frederick, to the Bradford team. He went down the back entrance to Smith's Hawthorne Road house and emerged 25 minutes later carrying a plastic bag. On 31st January 2000 Lowe arrived at 107 Upper Parliament Street shortly after a large quantity of drugs had been delivered there by the Neary brothers. Lowe thereafter organised the transfer of 2 kilograms of drugs by Ellis, first to Stephen Smith and then by him to Scottish couriers. On 12th February 2000, when going through customs on his return from Amsterdam, Lowe falsely stated he had travelled out by car with a man called Johnson who owned the car and worked for British Telecom in Holland. On 27th February Lowe arrived at 107 Upper Parliament Street shortly after drugs had been delivered and when the flat was being searched by police. £24,000 in cash was recovered from Lowe's home. He was arrested on 27th February and when questioned about that cash said it belonged to a member of his family. He claimed to have visited 107 Upper Parliament Street that day looking for a man called O'Rourke.

Lowe gave evidence that, although he went abroad three times during the period of the conspiracy, he never carried money out of or brought drugs into this country. Any bags he was seen carrying contained nothing relating to drugs, with the importation or distribution of which he had no connection. His lifestyle was modest. He had debts. He had a legitimate business in the construction industry and a criminal business dealing in stolen motorcars. Most of the cars he sold to Neary with whom he was in regular contact. But he was unaware that any of these vehicles were being used for drug dealing. The £24,000 cash found by the police at his house came mostly from the stolen car business but, in part, from savings from his cash construction business. He admitted buying a false passport and birth certificate which he had given to Miss Coker for safekeeping. He had never used it. He denied meeting Neary in Sefton Park on 1st August 1999. He had not been at 26 Hawthorn Road for 25 minutes carrying a plastic bag or otherwise on 30th December. Nor had he been at 107 Upper Parliament Street on the Sunday evening at the end of January 2000. He admitted lying to customs officers on his return from Amsterdam on 12th February 2000 and that his explanation for being at 107 Upper Parliament Street, namely that he was looking for O'Rourke, was false: The real reason for his visit was to obtain cannabis for his own use from Ellis. He admitted going to 'A Touch of Steel' on 29th December 1999 with Ellis: the purpose of the visit was not drugs but to look at some wrought iron furniture. He had known Parkinson for two or three years and knew that Parkinson was a bit of a rogue and a receiver of stolen goods. Towards the end of 1999 Lowe distanced himself from Parkinson because he heard that Parkinson had been arrested for an offence unrelated to the present case. He had access to two mobile telephones with which he contacted Parkinson but their dealings were not connected with drugs. He denied recruiting Miss Coker as a courier. He did not know Stephen Smith and, although he had driven Parkinson to 26 Hawthorne Road he had never been inside that house or carried a plastic bag there as described by the police on 30th December 1999. He had first met English on 15th November 1999 the day before English's arrest."

5. The grounds of appeal with which we are concerned today have been helpfully encapsulated from the Criminal Cases Review Commission reference in a speaking note prepared by Mr Fitzgerald QC, who appears on behalf of the appellant. He identifies seven key grounds of appeal in relation to the criticism by the CCRC as to the failure of the judge properly or adequately to direct the jury in relation to section 34 as to the alleged failure of the appellant to refer or mention to the police in interview facts upon which he is said subsequently to have relied at trial. Those seven key grounds are as follows. First, the judge failed to identify for the jury the precise facts referred to in evidence, but not mentioned in interview, which could be the subject of an adverse inference. Second, the judge failed to identify those facts which could not be the subject of adverse inferences either because the fact was one relied on by the prosecution which the appellant simply admitted during evidence, such as the admission that he had arranged for the translation of Ellis' documents, or because the matter was not put to him in interview, such as the trips abroad and his contact with Martin Neary. Third, the judge wrongly left the jury with the impression that some unspecified "adverse inferences" could be drawn from his silence in respect of all the facts not mentioned in the interview. This happened in a crucial passage, it is said, of the summing-up. Fourth, the judge failed to give direction in accordance with the judgment of this court in McGarry [1999] 1 CrAppR 377 namely that the jury should not in any way draw an adverse inference in respect of facts mentioned by the appellant in the course of the trial which had never been put to him in the course of police questioning. There should, it is said, have been a McGarry direction in relation to the appellant's trips abroad and his contact with three individuals, Carl Brown and the two Neary brothers. Fifth, the judge wrongly left the impression that an adverse inference could be drawn from the appellant's silence itself rather than from his failure to mention a fact when questioned which was subsequently relied upon at trial. Sixth, the judge failed to deal adequately with the fact that the appellant was entitled to remain silent during police questioning. Seventh, the judge failed to direct the jury that if they believed the appellant's explanation for his silence in interview, namely that he was not involved in drugs but had been involved in a stolen car business, then they could not draw an adverse inference. The judge failed to direct the jury that they had to be sure that the real reason for the failure to mention the relevant facts was that the defendant had no innocent explanation.
6. The summing-up about which complaint is made took place over a total of seven days. It was a substantial piece of work by the judge. It was structured carefully; and the Vice President, when dismissing the first appeal paid tribute to the care with which it had been constructed. We would wish to pay tribute to it ourselves, even though, as we shall say, there are aspects which, essentially because of authorities pre-dating the trial, were aspects which in the light of those authorities would have been dealt with differently by this experienced judge.
7. Having introduced the legal principles upon which the jury should consider the evidence, including a full direction in relation to the provisions of section 34 to which we will return, the judge then set out in general terms the case against each of the defendants and the defence of each of the defendants. He then turned, with the help of a detailed chronology, to the overall evidence; and in the course of dealing with the facts as the chronology unfolded, he indicated to the jury certain aspects of the interviews of the various defendants which related to the particular part of the chronology with which he was dealing, and made comment about the extent to which that particular defendant had dealt in interview with the evidence. Again, that is a matter to which we will return.
8. He then came to what might be described as the denouement, which was the events of 27th February 2001. From the evidence relating to that day he turned almost immediately to the interviews, but in particular the interviews of this appellant and gave to the jury certain further directions relating to the contents of those interviews which are of critical significance in the evaluation of the appellant's arguments in this case.
9. We then turn to what it is that underpins the criticisms made by the jury of those directions. There is no doubt that since the decision of this court in R v Argent [1997] 2 CrAppR 27 it has been underlined repeatedly that when a judge is directing a jury in relation to the application of section 34, care must be taken to ensure that the jury concentrates on the wording of the section in so far as it states that the jury is only entitled to draw adverse inferences in relation to any facts upon which the defendant relies which were not mentioned in any interview. That of course follows precisely from the wording of the section and also from the wording of the caution which is now given to all defendants when they are questioned by police. Further, there is authority, namely the case of McGarry to which we have already referred in relating the basis upon which the CCRC reference has been brought, to the effect that if a court considers that no adverse inference should be drawn from the facts, then the judge should direct the jury to that effect in order to ensure that the jury does not misunderstand its function when assessing the value of any such interview. The further underlying principle, it is said, which should be borne in mind is the principle to be derived from Daly [2001] EWCA Crim 2643, namely that if there is any possible explanation for the failure of the defendant to mention such facts, the judge should direct the jury to consider that matter even if it is not an explanation which the defendant himself has put before the court. Finally, and perhaps most significant in the context of this case, it is said that the jury must always be directed that the defendant at all times has the right to remain silent; and that is the context within which the jury should decide whether any inferences should be drawn from any alleged failure to mention such facts. That principle is to be found in Condron v United Kingdom [2001] 31 EHRR 1.
10. Mr Fitzgerald on behalf of the appellant submits that the latter is now a fundamental requirement and has been accepted as such in relation not only to section 34 but also section 35 of the Act, and has been inserted since that case in the Judicial Studies Board directions which are intended to assist judges to ensure that they cover all the relevant principles when summing up to juries in this sort of case.
11. It is to be noted that so far as Condron in particular was concerned, that decision, although it was given on 2nd May 2000, was not reported until at or about the time that the judge gave his summing-up in this case.
12. Turning then from those general principles to the parts of the summing-up about which complaint is made, it is to be noted that as far as the first and general direction to the jury in relation to the application of section 34 is concerned, save for the fact that the judge did not give a clear direction in accordance with the judgment of the Court of Human Rights in Condron, no fair criticism can be made of the directions that he gave. He made it abundantly plain to the jury that they had to identify facts which were not mentioned in interview but which were relied upon subsequently by a defendant, and in other respects he accurately directed them as to the circumstances in which any adverse inference could be drawn. He did not in that general part of his direction to the jury identify more than an example in each defendant's case of what might be considered to be an occasion upon which a fact was relied upon which had not been mentioned by the defendant in his interview. In relation to the appellant, the judge's example related to the visit to "A Touch of Steel". As far as that example is concerned Mr Fitzgerald makes no complaint about the way it was formulated in that part of the summing-up.
13. What he does criticise is the way in which the judge dealt with the individual occasions upon which he pointed the jury towards aspects of the interviews which the jury could consider were occasions upon which the appellant failed to mention facts upon which he subsequently relied. He complains essentially in two separate respects. First, he submits that when each of those occasions is analysed the judge does not fully and properly identify the facts upon which the jury could be asked to rely but simply comments in relation to the interview that the appellant failed to say anything about that particular part of the case. An example was the incident on 8th July when the appellant was seen to be carrying on two occasions a green and black sports bag, which appeared on the second occasion to be heavy. In evidence the appellant had identified that occasion as one when he had been to a gym; and any indication that the bag might have been heavier on the later occasion was because he would have used the towel in it to dry himself and therefore there would have been greater weight in the bag. Having gone through the evidence in relation to that incident, the judge turning to the interview said as follows:

"During the course of his interviews, members of the jury, Mr Lowe was asked about this particular day: 'You were seen to leave your home. You moved a heavy green and black sports bag. Can you tell me what's in the bag?' He remained silent. He was actually asked: 'Do you use the gym?' That specific matter was raised and he remained silent in relation to that as well."

Turning to the incident, when he dealt with some documents which were in French on behalf of Mr Ellis, the judge in relation to the interviews said:

"During the course of Mr Lowe's interviews, after he had later been arrested, he was asked: 'Do you know Anthony Ellis?' He said that he did know him. He was asked how he knew Anthony Ellis, and he said: 'I don't wish to answer any questions at this stage due to lack of disclosure.' In addition, the matter of the seizure of money from Mr Ellis was put. This was put to him: 'The translator confirmed that you were the man that took the documentation for translation. Do you wish to comment on that?' He remained silent."

That was in the context of the judge having immediately before that set out in short form what he described as the facts and evidence upon which the appellant had relied.

14. It is unnecessary for the purposes of this judgment to go through the other six occasions when the judge carried out the same exercise in relation to other incidents. It seems to us that the way in which the judge dealt with each of those incidents was sufficiently clear in identifying for the jury the facts upon which the appellant relied as to meet the requirements of the section. The mere fact, if we can put it that way, that he did not list each of the facts themselves does not in our view derogate in any way from the overall direction which he gave which adequately identified the parts of the appellant's case which consisted of the fact upon which he relied which was not mentioned in interview. We accordingly have no difficulty in concluding that although there might have been, if one applied a counsel of perfection, a fuller way of identifying the facts, the way the judge did identify the facts could in no way be described as amounting to a misdirection.
15. In our view, the nub of the criticism that can be made of the judge's summing-up in respect of his directions in relation to section 34, comes in the way he dealt with the interviews in the part of the summing-up which followed the narrative in relation to the events of 27th February. Having set out for the jury clearly and accurately the facts relating to that particular day, which included the finding of the £24,270 in cash, the judge said as follows - and it seems to us that it is necessary for us to set out in detail this particular part of the summing-up because it is such a critical part of Mr Fitzgerald's criticisms:

"Mr Lowe, Members of the jury, was interviewed and in your interview files you have the four summaries. It is the last thing I am going to ask you to look at today, but I wonder if you would be good enough, please, to look at those now. It is at the front of that large black file. Can you just read through them very quickly. It will not take long. These are agreed summaries. If we look at the first one, the defendant was cautioned. The interview lasted 12 minutes during which the defendant was asked about his presence at 107 Upper Parliament Street the night before. That is the 27th. He was told that his own home at 271 Smith Down Lane had been searched. He was asked about the items recovered including the £24,270 in cash. He made no comment save to say that the cash belonged to a member of his family and, Members of the jury, pausing there, Mr Lowe accepts that that was a lie that he told. But he stated that he did not wish to disclose the identity of that person at this moment. He was told that it was believed that he associated with Anthony Parkinson, Desmond Neary and Stephen Smith.

If we turn over, the second interview lasted for 43 minutes. The defendant was cautioned. The details of the police observation starting from July 1998 were put to the defendant. He either made no comment or was silent in response to the questions which were put.

Overleaf, 44 minutes, every observation in relation to November 15th and 16th was put. Members of the jury, these were the days on which there had been the rather complicated movements, do you remember, in relation to Danny English and the about No 271, the defendant did not reply. Similarly the other details contained within the chronology were put to him and he remained silent when asked about those matters.

Overleaf another interview, 24 minutes. Mr Lowe was asked about the police observations on 30th January, 31st January and 1st February. He did not answer any of the questions. He was asked about the passport bearing his photograph and in the name of Alan Perrin which had been found at 3 John Moors Close and he did not answer the questions which were put to him.

Now, Members of the Jury, we have looked at this question of Mr Lowe and his declining to answer questions in certain areas before. It is right to add that during the course of the interviews, Members of the Jury, he did not say anything about buying and selling stolen cars to Martin Desmond Neary. Again, Members of the Jury, subject to the general direction which I gave you earlier, you are entitled, if you think it right to do so, to draw inferences from his silence. But the defence invite you not to do so on the basis of Mr Lowe's own evidence.

Mr Lowe explained why it was that almost without exception he was either silent or answered 'No comment' in answer to the questions. First, he said, he was in shock having been arrested for conspiracy to supply drugs. Secondly, his solicitors had told him when they met before he was interviewed that he was alleged to be the millionaire head of an international drugs cartel which had been under police surveillance for 18 months, and that is what his solicitor told him and obviously added to his state of shock. The solicitor, further, advised him you can answer all of the questions or none of them and so Mr Lowe to answer none of the questions and his solicitor had agreed with that decision. If you think that those matters or any of them amount to a reason not to draw adverse inferences from his silence then do not do so. Otherwise, subject to the redirection which I gave you earlier, you may do so if you think it right and fair to do so."

In our judgment Mr Fitzgerald can rightly criticise that part of the summing-up, firstly, for failing to state that the appellant was under no obligation to answer any questions; he had a right to silence. Secondly, in our view he can criticise properly the fact that the judge appears to have been indicating to the jury that silence in interview could in itself entitle the jury to draw adverse inferences beyond the issues which he had in fact specifically identified on the eight occasions on which he had in going through the chronology made the comments to which we have referred. In those circumstances, Mr Fitzgerald can properly submit that we should look with care to see whether or not the consequence of the way in which he directed the jury in this passage could be said to have offended against the principle that the judge should be identifying for the purpose of the jury the precise facts upon which the appellant relies and not merely making a general comment indicating that silence could of itself entitle the jury to draw adverse inferences, particularly as he did not underline the appellant's right to silence.

16. Finally, we note Mr Fitzgerald's criticism that the judge did not direct the jury that one circumstance which they could take into account in deciding whether it was proper to draw an adverse inference was the fact that in so far as his explanation related to dealing in stolen cars that might have meant incriminating himself and that therefore that might have been an explanation for his failure to mention that during the course of his interviews.
17. We have to evaluate those criticisms in the light of the fact that experienced counsel acting on behalf of the appellant did not raise with the judge any criticism at the time of the way in which the judge summed up this aspect of the case to the jury, nor did it form any part of the criticisms of the trial upon which the appellant relied at his first appeal in 2003. It is also important for us to bear in mind that this was a summing-up at the end of November 2000 in an area where the attitude of the courts to the proper way to sum up in relation to this aspect of trials was developing. It seems to us that a valuable decision of this court in determining the way that we should approach references by the Criminal Cases Review Commission where there are criticisms of this nature is the judgment of this court in Boyle and Ford [2006] EWCA Crim 2101. Having referred to the fact that the CCRC in that case had, as in the present case, suggested that there might be what might be called "an absolutist" approach to the directions necessary in cases involving adverse inferences under section 34, the court said as follows:

"13. We are troubled as to what should be the right approach of the Court of Appeal in a case such as the present. We follow the argument based on the absolutist approach. But if an absolutist approach must be adopted in all cases where a misdirection is now identified in respect of cases where it has never previously been suggested that a trial was unfair, or a conviction unsafe, that would seem to leave it open to appellants on the advice of lawyers to bring before the CCRC cases where permission to appeal out of time might not have been given. It is relevant, as it seems to us, in considering a s.34 case, and indeed this case, to recognise that all the points taken as to the inadequacy of the direction, are points taken in other cases. In other words it is important to recognise that it was open to the appellants in this case to take the points now taken, if anyone had thought of them at the trial or immediately after the trial, if it were thought that there was force in any argument that the trial had been unfair.

14. We believe that an absolutist approach, particularly to a reference, is not called for. Each case depends on its own circumstances. The essential question is whether any misdirection identified has caused an injustice and whether the Court of Appeal is satisfied that the verdict was safe. In reaching a decision as to the safety of the verdict it may assist to analyse first how the case was left to the jury by virtue of the direction given and then second to analyse how it would have been left to the jury if a proper direction had been given. The court should then assess, whether having regard to the jury's verdict on the direction as given, the jury would have been bound to convict if a proper direction had been given. Only, of course, if the court is sure that the jury would have been bound to convict can the verdict be said to be safe."

18. We agree with that approach. The question that we have to ask ourselves remains the statutory question which is whether or not we consider that the verdict reached in this case was safe. In doing so, we have to bear in mind whatever criticisms we consider to be correctly made as to the summing-up. In the present case, as we have indicated, we accept that although it formed no part of the Judicial Studies Board direction at the time, the judge should have directed the jury that the defendant had the right to remain silent. We accept that it would have been better had the judge not in the final passages appeared to sweep up all the interviews into a general statement asserting that there was no comment made in relation to the overall prosecution case. Those were aspects of the summing-up which clearly can be properly the subject matter of criticism today. Further, we can see a justification for concluding that the judge should have indicated to the jury that they should take into account the fact that the appellant was asserting that he was involved in criminal activity of dealing in stolen cars when asking them to consider the extent to which there was any explanation for his having failed to mention that aspect of his case in interview.
19. We do not, however, consider that there are any other criticisms that can properly be made of the summing-up. So we turn to those that can properly be made to see whether or not they are such as to infect the verdict so as to leave us in doubt as to whether the verdict can properly be described as safe. As far as the direction that the appellant had the right to remain silent is concerned, the judge quite rightly in his general direction to the jury identified the nature of the caution as underpinning his directions thereafter as to what the jury could or could not do by way of drawing adverse inferences. In our judgment, taking the directions overall, the jury cannot have been in any doubt that they must start from the proposition that the appellant was entitled to remain silent. In the overall context of the case we cannot see that the jury could have been misled in any way in that regard. That is also inherent in the way he approached each of the points at which he gave the jury the direction that they might be entitled to draw an adverse inference. Secondly, as far as the criticism in the direction he gave at the conclusion of the case which seemed to suggest that the jury might be entitled to draw adverse inferences from the fact that he remained silent in response to "questions", which is the underlying criticism that was made, that has to be read, it seems to us, in the context of the paragraph in question which commenced with the following words:

"Now, members of the jury, we have looked at this question of Mr Lowe and his declining to answer questions in certain areas before."

He then turned to the fact that the appellant had not said anything about buying and selling stolen cars to Mr Martin Neary.

20. It seems to us that the judge in that passage was directing the jury back to the directions he had given in relation to specific facts in the individual incidents which he had identified and then adding a general comment which he had not in fact directed the jury about before, namely the part of the appellant's evidence which was based upon his case, namely that much of the activity about which the prosecution evidence related was by buying and selling stolen cars. There is no doubt that the direction given was not entirely satisfactory. That we have accepted. But so far as that aspect is concerned, we do not consider, and we will return to this in a moment, that the direction itself at the end of the day is one which we consider could properly be said to have so infected the verdict of the jury as to mean that the verdict is unsafe.
21. In so far as the judge failed to direct the jury that one reason why he may have decided not to answer questions in interview was concerned may have been because he did not wish to incriminate himself, it seems to us that that is a matter which the jury could have been expected to have taken into account as a matter of common sense. We bear in mind the fact that the judge specifically adverted to the fact at an earlier stage in the summing-up that as far as some of the co-defendants were concerned, they did indeed put forward as an explanation for certain of the things that they said or did not say that they did not wish to incriminate anybody in the trade of stolen motorcars.
22. In all those circumstances, we do not consider that the criticisms to which we have referred and those which we have indicated, although on their face well founded, vitiate the appellant's convcition. The evidence against this appellant was described in this court on the last occasion as overwhelming. Although that description has been one which is challenged on the appellant's behalf, having had an opportunity to look again at all the material we consider that that is a proper description of the case against this appellant, particularly bearing in mind the circumstances of his ultimate arrest and the circumstances in which he came to be close to the various supplies of drugs when co-conspirators were caught in possession of those drugs on earlier occasions.
23. The important point which has to be borne in mind as well in evaluating the importance of the particular criticisms that have been made, is that the failure of the appellant to answer questions in interview formed only a small part of the way the case was presented by the judge to the jury. We can fully understand in all the circumstances counsel for the prosecution's statement that the prosecution was disappointed at the way in which the jury dealt with this aspect of the case. The judge would have been fully justified in making significantly stronger comment, over a much wider area of the case, of the appellant's failure to answer questions in interview in the circumstances of this particular case. The judge was cautious, in our judgment, in his approach to the extent to which the jury should be entitled to take into account the appellant's failure to answer questions in interview.
24. Taking all those matters together, it seems to us that the criticisms have the air of ex post facto criticisms which should not result in this appeal being allowed. The fact that, as we have said, counsel both at the trial and at the first appeal did not raise these issues is in no way determinative, of course, of the importance of the aspects of the case about which criticism is now made. But it is often a helpful indication of the way in which the particular issues about which criticism is made have impacted on the course of the trial itself, and therefore whether those criticisms are criticisms undermining the safety of the conviction. For those reasons we dismiss this appeal.
25. MR FITZGERALD: My Lord, there is only one matter and that is the question of whether there is an issue for certification to the House of Lords. My Lord I have attempted to formulate a rough point but perhaps I could just give it to your Lordships and your Lordships could consider whether it is a point that arises. That is this: "Whether in a case calling for a direction as to adverse inferences under section 34 the failure of the judge to remind the jury of the defendant's right to remain silent renders the trial unfair and the verdict unsafe". My Lord I accept that given your Lordships' ruling that in a sense would be taking an absolutist approach at least to that aspect of things, but my Lord it is a slightly different point from that in Boyle, I think, because that was really about the failure there to review the facts, that is to say to identify the facts, and this in our respectful submission is something a little more fundamental that arises in this particular case. My Lords, I would respectfully submit that this is a point of law of public importance that arises in the case. Whether your Lordships think it is a point that is one that merits leaves or not is another question, but it is an issue of public importance, that is to say where there is to be a section 34 direction as to the drawing of adverse inference whether the failure of the judge to remind the jury of the right to remain silent renders the trial unfair and I would submit the consequence must be that the trial is unfair and the verdict is unsafe.
26. THE VICE PRESIDENT: Yes, we understand the point.
27. MR FITZGERALD: My Lord, I respectfully invite your Lordships to certify that point. Of course leave is another issue, as I appreciate, and your Lordships normally leave that to the House of Lords but I would ask your Lordships to at least make that possibility available to the appellant.
28. THE VICE PRESIDENT: Mr Fitzgerald, in our judgment there is no point of law of public importance. The question remains one of safety. That is the issue.
29. MR FITZGERALD: My Lord, I am obliged.