England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		25 April 2008

1. LORD JUSTICE HUGHES: The contention in this appeal is that the conviction was unsafe because the judge was wrong to give a direction under section 34 of the Criminal Justice and Public Order Act 1994.
2. The appellant had been charged with two offences of wounding contrary to section 20 (counts 1 and 3). They were said to have been committed on the same evening. There had been an argument in a public house between the appellant and some other people. The Crown case was that the appellant had made threatening remarks to man called Moss and his girlfriend to the effect he would firebomb their flat. Later, so the Crown asserted, the appellant confronted Moss on the street where they both lived and attacked him without provocation with some nunchuckas, otherwise known as a rice flail. He had taken that from his pocket, said the Crown. Moss suffered wounds and that was count 1.
3. As to count 3, the Crown's case was that another local man, Porter, was in the public house when Moss returned, bloodied, to it. Porter thereupon went to the appellant's house, clearly either to remonstrate with him or to confront him about it at least. Porter banged on the appellant's door. Thereupon the appellant emerged carrying a meat cleaver and struck out with that. That cut Porter on the arm as he tried to ward off the blow.
4. In an interview with the police very shortly after the event the appellant advanced the following case. As to count 1 he said that after leaving the public house he had gone home, but a little later had left to take the dog for a walk. He had encountered Moss whilst out on the street. Moss had abused him and then, without provocation, punched him twice. Said the appellant in interview, it was Moss who had been aggressive and it was Moss who had spoken about burning his house down rather than the other way around. The appellant's account continued in interview by saying that he had gone back into his house, but Moss had followed him there, banged on the door and shouted abuse. So he went outside again, taking the rice flail in the back of his trousers. There was a second confrontation between them. Moss raised a fist to him and had a knuckle duster on his hand so the appellant defended himself by striking out with the rice flail. That was his account in relation to count 1. As to count 3 he said in interview that he had then gone back inside, washed and gone to bed. Subsequently a group of eight or more people had arrived outside the house and made a terrific commotion. They had shouted abuse and kicked at his door. The police came and tried to calm things down but Porter continued to swear and shout. The appellant opened his door only when the police came to it. He was naked at the time. He threw down the rice flail, but Porter came running at him again, kicked him twice in the groin so at that he drew out the cleaver from his pocket -- he did say both that he was naked and that he took the cleaver from his pocket. He did it, he said, when Porter tried to punch him. The slash of Porter's arm had been in self-defence. Those were the accounts given in interview.
5. At trial the defendant gave evidence. He then said this. After leaving the public house he went home, he later took the dog out and whilst out he had been confronted by Moss. Moss had punched him but he had not retaliated in any way. He went home. Lying in bed naked he heard banging at the door. He went to the door with the rice flail in one hand and the cleaver in the other, totally unclothed. There were lots of people outside. They were threatening and unpleasant. Moss was trying to hit him again so he responded with the rice flail. Porter who had the knuckle duster ran up as if to hit him with it. He discarded the rice flail but defended himself against Porter with the cleaver and it was after this that the police arrived.
6. Both those versions raised self-defence. That was the issue for the jury. There were, however, plainly several significant differences between the interview account on the one hand and that advanced by the defendant on oath at trial on the other. The chief difference was that on his trial account the use of both the rice flail and the cleaver were part of the same business of fending off a joint attack by Moss and Porter, whereas in interview he had contended there were two distinct incidents outside his door separated by some period of time. There were a number of other important differences such as who had the knuckle duster, when the police arrived and whether he was dressed or undressed.
7. The judge was asked by the Crown to give a direction under section 34. He acceded to that request. He identified two facts on which the defendant was relying which he had not mentioned in interview, namely (1) that there was no real gap between the incidents, he was confronted by a mob and his self-defence arose all at one piece, and (2) he was absolutely naked when obliged to confront the mob.
8. The judge gave a section 34 direction in conventional form. It would have been better if he had tailored it to the offence but there is no complaint about the form of it. The argument is that it should not have been given at all.
9. We are bound to say we do not understand why the question of section 34 was ever raised. With or without a direction under section 34 the Crown's case was plainly going to be that the defendant's evidence was shown to be untruthful partly by other evidence in the case, which contradicted it, but also by the way his account had changed. The argument was, no doubt, that if it had been true it would not have changed as it did. That was an argument which was open to the Crown. The judge was virtually certain to advert to it and he would no doubt tell the jury that it was up to them to say whether the explanation for the change in account might be an innocent one or whether it was that the defendant's evidence was untruthful. The section 34 direction is simply a rather formalised way of saying precisely the same. Section 34 was necessary as an enactment because Parliament wished to reverse the old common law which was that because the defendant was entitled to remain silent in interview he could not be criticised as untruthful if he availed himself of that entitlement. But for generations before the passage of section 34 if a defendant gave Account A in interview and Account B in the trial he would be cross-examined upon the difference. The jury was, almost invariably, invited by the Crown to draw the conclusion that the change indicated a dishonest defence. The judge in such cases would tell the jury that it was up to them to say whether that conclusion should be drawn adversely to the defendant or not.
10. All that said, section 34 does no more than seek to apply commonsense. That is clear from the decision of their Lordships in Webber [2004] 1 CrAppR 40, [2004] UKHL 1. The question which a section 34 direction raises is always whether the omission to refer to something in interview which appears later in evidence is or is not an indication that the new material is untruthful. The object of the section and of the direction is to enable the jury to decide that question. The expression "fact" in that section is to be given a broad construction so as to serve that purpose. In a number of cases, including Webber, the courts have deprecated any attempt to subject the expression "fact" to over-analysis. It seems to us that the matters identified by the judge were capable of being facts within the section, but the real answer to this case is that even if they were not the direction of the judge would have been substantially the same. The fact that the section 34 direction includes the proposition that the jury is entitled to infer from the change of evidence some additional support for the Crown does not alter that; that is what they would be invited to do in the absence of a formal direction under section 34 because they would be told that they could if they thought it appropriate say that the fact that the defendant had altered his account was an indication that he was not telling the truth.
11. We would however endorse what has been said by this court before in Brizzalari [2004] EWCA Crim 310 at paragraph 57, that prosecutors should be cautious about too readily seeking to invite formalised directions under section 34. We respectfully add our discouragement to anything which over-formalises commonsense. We would caution advocates against making submissions which seek such unnecessary formalism from judges in their directions, and equally judges against employing it, unless it becomes essential.
12. We are absolutely clear that the jury in this case had the issues which arose in it properly before them. They convicted of unlawful wounding on counts 1 and 3. They acquitted of possession of an offensive weapon on count 2, which may or may not indicate that they were less than satisfied that the weapon had been carried in the open street, as the Crown suggested. But in any event we are absolutely certain that the conviction is safe. This appeal is dismissed.