England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM
His Honour Judge Bennett
T20087658

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 March 2011

Lord Justice Moses :

1. This appeal demonstrates the problems of the overlap between a s.34 direction and a direction as to lies. It reinforces the need for the judge to choose which of the two directions is more appropriate.
2. The appellant was convicted of attempted arson with intent to endanger life at Nottingham Crown Court on 13 March 2009. It was alleged that he joined with his co-accused, Bonser, in an attempt to throw a petrol bomb at the house of the victim, Melvin Urbacz, with intent to endanger Urbacz's life. The appellant and Bonser had been together, drinking, since about midday on 31 August 2008. At about 6.00 p.m. the appellant and Bonser went to Urbacz's house where Bonser shouted abuse at him. The appellant stood nearby. A neighbour, Tony Morley, heard the argument between Bonser and Urbacz, looked out and saw both Bonser and the appellant. Whilst inside the house, he heard Bonser threaten to petrol-bomb Urbacz's house. He looked outside again and saw the appellant standing next to Bonser. This was important evidence, from an independent source, that the appellant must have heard the threat.
3. Tony Morley's evidence was supported by his wife Denise, who also said she heard the threat to fire-bomb Urbacz's house. After she had heard the threat she looked out of the window and saw Bonser in front of the appellant. They walked off together.
4. Shortly after, Reece Stephenson was standing in the garden of his flat and saw Bonser and the appellant approaching the flat opposite, number 11 B. Reece Stephenson said that Bonser and the appellant came to the gate of Stephenson's garden and that Stephenson lent Bonser a jerry-can. Bonser repeated his threat to bomb Urbacz's house whilst the appellant was about three feet away.
5. A short time later, at about 7.00 p.m., the appellant drove Bonser to a petrol station where the appellant filled a jerry-can with petrol. Bonser then returned with a youth who the prosecution alleged was this appellant to Urbacz's house, where Bonser threw a petrol-bomb towards those premises. In fact, the bomb hit an adjoining terraced house where the witnesses Tony and Denise Morley lived. Bonser and the youth then ran away. The jerry-can was recovered from the communal area of the flat 11B, where Bonser lived.
6. In his first interview on 2 September 2008 the appellant said that he was not involved in the arson and knew nothing about it. When his co-defendant's account of going to a petrol station to buy petrol was put to him, he indicated that he knew nothing about that visit. He had gone to Urbacz's house with Bonser, knowing that Bonser had a grievance against Urbacz, but had not heard everything and denied hearing any threat. In his second interview on 18 October he produced a prepared statement stating that after Bonser's argument with Urbacz, he had gone to the petrol station to get petrol for a strimmer.
7. In his evidence the defendant said that although he had heard Bonser and Urbacz swearing and threatening each other, he at no stage heard Bonser say he would petrol-bomb Urbacz's house. After that argument they had walked back to the flat at number 11B and the appellant had gone inside and had heard no conversation with Stephenson. He had fetched car keys and taken Bonser to a petrol station to buy petrol for a strimmer. There had been a complaint by the council that the grass lawn outside number 11B had not been trimmed and he had agreed, at Bonser's request, to fetch petrol for the strimmer. He explained that he had not mentioned buying petrol for the strimmer in his first police interview because he had been drinking and driving and had only just got his licence back. If he had admitted driving to fetch petrol it would have involved an admission that he had been drinking and driving.
8. In support of his evidence he called Sarah Hardy who gave evidence that Bonser's girlfriend, Kayleigh, had asked Bonser to get some petrol for the strimmer because she had been warned by the council. It had not been possible to go to the petrol station earlier because the appellant's niece had been in the car. She said that the appellant left 11B with the car keys and returned fifteen to twenty minutes later without Bonser.
9. The prosecution, in support of its case that the appellant was the unidentified young man accompanying Bonser when Bonser threw the petrol bomb, relied upon the fact that the appellant had not at first revealed that he had gone to a petrol station to fetch petrol shortly after Bonser had threatened Urbacz that he would throw a petrol bomb, and upon the fact that when he did advance an explanation for his visit to the petrol station, he lied in asserting that the purpose was to fetch petrol for a strimmer.
10. The appeal focussed upon the direction the judge gave. It is, accordingly, necessary to set out the directions the judge gave in relation to s.34 of the Criminal Justice and Public Order Act 1994 and as to the subsequent alleged lie given by way of explanation for the visit to the petrol station. The relevant part of the judge's direction reads as follows:-

"As part of his defence, the defendant has relied upon a number of things. The whole background of how Kayleigh – who incidentally has not been called to give evidence, not that the defence have to prove anything, but she's not come – but the whole background of how Kayleigh, according to him and his witness, had been pestering him all day to obtain petrol for a strimmer, he has not mentioned to the police in interview. He has not mentioned going to the petrol station and filling up the can in interview. He admits that was a lie as well, that latter matter and I will give you another direction in relation to that when I come back to that again in a minute. He failed to mention anything in connection with this meeting with Reece, in particular his case being that he had gone back into 11B when any conversation with Mr Bonser may have had with Reece occurred and when Mr Bonser was acquiring whatever he was acquiring, he wouldn't have known anything about it, he didn't say a dicky bird about all that and the prosecution say – and he admits really – that he failed to mention those facts when he was interviewed that first time about the offence. Now the law bites at that stage. It is no good, a month later, coming back with a prepared statement and thinking that this piece of legislation won't bite, because the whole point of it is so that answers are given straightaway, where possible, before there is any chance of for anybody to go away and invent or cook up a story. That is the whole point of the law. So even though it is true – and again, I will come back to it in a minute – that he does later produce this prepared statement, a month later, you don't get any of this at the time and if you are sure that that is so, that failure can count against him. That is because you may draw the conclusion, from his failure, that at that time, he had no answer or no answer that he then believed would stand up to scrutiny and has since invented his account, tailoring it if you like, to the evidence that he knows about. If you do draw that conclusion – it is a matter for you whether you do or not – you must not convict him wholly or mainly on the strength of it, but you may take it into account as some additional support for the prosecution's case when deciding whether his case about these facts is true. But there is a caveat. You may draw such a conclusion against him only if you think it is a fair and proper conclusion and you are 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 and; 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.

Now when he was re-interviewed a month later and by then had produced his prepared statement, he refused to answer questions on the advice of his solicitors and I say nothing more about that than this, that in the context of this case, do not hold that silence against him. All right? He was acting on the advice of his solicitor.

I said I would mention something about his lie about the petrol station, because although it is tied in with the generality of what I have just described about him not mentioning in his defence all this business about how innocent it is to go and get petrol for a strimmer and so on, this is a specific lie and it is alleged that he lied to the police in telling them that he had not driven to that petrol station. You are entitled to consider whether that supports the case against him, but, again, you have to ask yourself two questions. Decide whether the defendant did, in fact, deliberately tell those lies or that lie and if you are not sure he did, then you ignore it, but he is not disputing that he did, he answered that to Mr. Janes in the affirmative. So if you are sure he lied, you ask why did he lie? Because the mere fact that a defendant tells a lie is not in itself evidence of guilt and is different to not revealing your defence or matters that you later rely on, I hope you can see that, even though the two are connected and his explanation may have some force in relation to both, which is why I am dealing with it this way – you will decide – but a defendant might lie for a lot of reasons and they could be innocent ones in the sense that they do not denote guilt. Let me give you some examples: to bolster a true defence, to protect someone else, to conceal some disgraceful conduct short of the commission of the offence. A defendant might lie out of panic, he might lie out of distress, he might lie out of confusion. He says, 'Well, I lied because I didn't want the police to be throwing the book' – my words – 'throwing the book at me over the drink/driving issue because I'd been drinking and driving and I'd only just got my licence back' You have heard the cross-examination about that. You decide whether that holds up or doesn't hold up, but that is his explanation. If you think there is or may be an innocent explanation for his lie, you take no notice of them, it doesn't add anything. It is only if you are sure he did not lie for an innocent reason, what he was really doing was wanting to hide the fact that he had been to the petrol station, if you are sure of that, then it is only then that his lie can be regarded by you as evidence supporting the prosecution's case."

11. The judge rightly discussed his proposed direction and indicated that he was proposing to give a s.34 direction and also a Lucas direction. Unfortunately, neither counsel drew the judge's attention to three important principles, which were relevant to the judge's directions: the first was identified in R v Webber [2004] 1 Cr App R 40, 513, the second in R v Mubbashar Rana [2007] EWCA Crim 2261 and the third in R v Stanislas [2004] EWCA Crim 2266.
12. The first principle is that it is not appropriate to give a s.34 direction in relation to facts accepted to be true. In Webber Lord Bingham said:-

"In R v Wisdom and Sinclair (unreported) December 10 1999, CA, an important point was established: that rarely if ever could a s.34 direction be appropriate on failure to have mentioned an admittedly true fact at interview. Since the adverse inference in question is that a matter not mentioned at the interview is likely to be untrue, there is no room for the inference if that matter is agreed to be true. This approach was followed by the Court of Appeal, correctly, in R v Kenneth Jones B (unreported), October 23, 2003, CA (paragraph 28)."

13. The second principle is that it is usually unhelpful to give a jury both a s.34 direction and a Lucas lies direction; the judge should select and adapt the direction more appropriate to the facts and issues in the case. The correct approach was explained by Auld LJ in Rana:-

"10…although there was considerable overlap, as there often is in cases covered by s.34, between an appropriate lies direction and a s.34 direction, it might have been more straightforward for the judge to have opted here in terms for a lies direction. However, there was no reason why he should not have taken the s.34 route - as he did. He could have suitably modified the direction to give the slightly sharper focus that earlier failure, by lying, to disclose the true defence case was only supporting the prosecution case if the jury was satisfied that there was no innocent reason of the sort he advanced, namely shame, embarrassment, etc.

The judge in our view plainly conveyed that in the passages in his summing-up that we have set out.

11. Thirdly, we've been referred briefly to a number of authorities where this point has been considered by the court. They are: R v Lucas (CA) [1981] 3 WLR 120; v Goodway (CA) Times 11 August 1993; R v Burge and Pegg (CA) [1996] 1 Cr App R (s.163); R v AO (CA) [2000] Crim LR 617; R v Stanislas (CA) [2004] EWCA Crim 226 and R v Adetoro [2006] EWCA Crim 1716. Those authorities indicate the considerable potential for overlap between a lies direction and a s.34 direction, where both may be considered appropriate. They also indicate how a court should approach the matter. The choice between one or another and as to how to deal with it, by way of modification or otherwise, are in every case a matter for judgment of the trial judge according to the circumstances and the precise issues in play in the case. It seems to us, given the way in which thinking has developed in this short line of jurisprudence, that whilst, in any particular case, both may be appropriate, or one may be slightly more appropriate than the other, it is unhelpful to a jury to be given both directions out of an over-abundance of caution. We consider that the better course is to select the one or other that seems to be the more appropriate to the case and, if necessary, as the judge did here, modify it to meet the particular circumstances."

14. The third principle is that where directions are given, both as to a failure to mention a relevant fact and as to lies, it is important that the directions are consistent. In Stanislas the defendant was accused of possession of heroin with intent to supply. He had at first lied about being in possession of the drugs; but, subsequently in evidence, he admitted possession of the drugs but asserted that they were for his own use. The purpose of the lie was to distance himself from possession of the drugs, but, arguably, did not assist, once he admitted possession, as to whether he had them with intent to supply. The judge declined to give a Lucas direction but in giving a s.34 direction, failed to direct the jury that the lie might have been attributable to a wish to dissociate himself from possession and not be of assistance in judging whether he had an intention to supply. Mance LJ said:-

"11. It seems to us therefore that the position is, when the judge dealt with the matter with counsel in the absence of the jury, firstly, he correctly identified the fact that the lies were probably not of any relevance to guilt at all – their purpose was simply to avoid being found or caught in possession and – that they could not assist the jury to draw any inference as to the intent with which any possession was held, either way;…it also seems to us that the judge did not pursue that line logically in his summing-up or in the s.34 direction which he gave….

13. It seems to us that the gist of the summing-up, once the judge gave the s.34 direction that he did, was to tell the jury that they could, to some extent, rely as evidence of guilt, on the failure to mention at the earlier interview, the facts which the defendant was now in the witness box alleging to be true if they thought it appropriate to do so… Once a s.34 direction was given, it seems to us that it was incumbent on the judge to make very clear to the jury the obvious possible explanation for the lies told in interview, and the failure to mention the account given in evidence, namely, a continuing wish to dissociate himself from drugs, which was a neutral explanation and which showed that the lies had no bearing on the question of guilt or innocence in relation to intent to supply. Had [the judge] compared the s.34 direction which he gave with the standard form of Lucas direction he would have seen that, in the context of this particular case, there was a considerable overlap, but that, if he had given a Lucas direction, it would have been incumbent on him to remind the jury specifically of any such obvious or possible explanation for the lies of an innocent nature as might exist. Unfortunately, since he decided that a Lucas direction was inappropriate, he did not follow the format of a Lucas direction and he did not insert into the s.34 direction any specific explanation of the reference he made to the defendant having 'no answer at the time or none that would stand up to scrutiny', still less any specific reference to the obvious explanation which the defendant might have."

15. The court concluded that the judge should either have added a Lucas direction or should have tailored the s.34 direction so as to include the substance of the Lucas direction (paragraph 14).
16. The judge in the instant appeal was plainly correct to give a s.34 direction to the jury. But, unassisted by reference to authority, he failed to apply the principles we have identified. First, the judge focussed on the fact that the appellant had "not mentioned going to the petrol station and filling up the can in interview (the first interview)". But the failure to mention the visit to the petrol station and the failure to mention that he had filled the can with petrol were not themselves failures which ought to have triggered a s.34 direction. Both the visit to the petrol station and the filling of the can by the defendant were facts accepted to be true and relied upon by the prosecution. Webber teaches that a s.34 direction in relation to those failures was not appropriate.
17. S.34 is relevant to facts subsequently relied upon by the defence at trial; a failure to mention such a fact invites an adverse inference that the fact is likely to be untrue. The judge ought to have targeted his S.34 direction at the failure of the appellant to mention the purpose of the trip to the petrol station, not the mere fact of that trip. His asserted purpose, to fill a can with petrol for the strimmer, was a fact on which he relied in his defence. The prosecution case was that the appellant had not thought up the strimmer explanation at the time of the first interview, and had subsequently made it up and incorporated it into his later written statement handed to the police. By virtue of s.34 the jury was entitled to conclude that the delay in advancing the strimmer explanation lent force to the suggestion that that explanation was a feeble lie, designed to explain both the trip to the petrol station and how the defendant came to fill the can with petrol used for the fire bomb. The judge did refer to the fact that the defendant had not, at first, mentioned that Bonser's girlfriend Kayleigh had been pestering him all day to obtain petrol for a strimmer. But he failed to direct the jury, with clarity, that the delay in advancing that explanation was a significant factor the jury was entitled to consider when assessing the truth of that explanation.
18. Second, as the extract from the summing-up reveals, the judge gave a s.34 and a Lucas direction. Had he been reminded of Rana he would have appreciated that it was confusing and wrong to give both directions and that he should have confined himself to a s.34 direction.
19. The judge should not have given a Lucas direction. The essential question for resolving the guilt or innocence of this defendant was whether he had driven to the petrol station to fetch petrol for Bonsor's firebomb or for the strimmer? If, despite the coincidence of time, the jury thought that the defendant's explanation might be true, then his failure to mention, when first interviewed, the visit to the petrol station or the explanation for that visit lost any significance.
20. But before reaching the conclusion that that explanation might be true, it was incumbent upon the jury, in fairness to the prosecution, to ask why the defendant had not given that explanation earlier. In assessing that question, the jury had to consider the truth or otherwise of the defendant's assertion that he was concerned not to reveal that he had been drinking before he drove. If the jury thought that assertion might be true that would go some way to supporting the truth of the strimmer fuel explanation. But if they rejected that assertion, then the only sensible explanation for the defendant's failure, in the first interview, to admit the visit to the petrol station and mention his purpose in filling a petrol can was that he had not, at that time, thought of any innocent purpose in making the trip to the petrol station.
21. Once the jury rejected the defendant's explanation for the trip to the petrol station the prosecution had gone a long way in proving its case. The only sensible reason to lie about the purpose of the journey to the petrol station and the purchase of the fuel was that he had gone there to buy fuel to make a petrol bomb. The jury was entitled to have well in mind that only a short time had elapsed since Bonser had threatened Urbacz with a petrol bomb in the appellant's vicinity (to put it at its lowest) and Bonser had borrowed a jerry-can. In those circumstances it was inappropriate, and unduly favourable to the defence, to suggest that there might have been some innocent reason for giving a false explanation for the journey to the petrol station and the purchase of the petrol.
22. The direction to the jury ought to have started with the explanations given by the defendant: first, that he had gone to the petrol station to buy petrol to fuel a strimmer and second, that the reason he had not given that explanation earlier was his fear of the consequences of revealing that he had driven after drinking. Once the jury rejected the appellant's explanation for travelling to the petrol station the jury was left with no sensible reason for going there with Bonser at that time other than to fetch petrol for the fire-bomb. The prosecution was entitled to such a direction without the protection a Lucas direction affords to a defendant.
23. A direction limited to s.34 would have made those issues clear to the jury and guided them by directing that they were entitled to draw the inference that the defendant's explanation as to his purpose in going to the petrol station was untrue because he had made no reference to that purpose in the first interview.
24. But such a s.34 direction had to be qualified by the application of the third principle, to which we have referred, to be culled from Stanislas and Rana. No adverse inference could be drawn unless and until the jury rejected the defendant's reason for concealing any reference to the petrol station, namely that he feared the consequences of an admission he had been driving. The jury could only draw an adverse inference once they had rejected that assertion.
25. In clear and helpful submissions Mr Nashashibi, on behalf of the appellant, identified the distinction between a s.34 direction and a Lucas direction. A s.34 direction invites the jury to draw an adverse inference as to the truth of a fact relied upon by the defence from the defendant's failure to mention it earlier without reasonable explanation. The adverse inference is that the fact is the product of more recent invention and false. By way of contrast, the purpose of a Lucas direction is to protect a defendant by reminding the jury that lies may be told for a number of innocent reasons, such as in order to bolster a true defence; they should not jump to the conclusion that because the defendant lied he is guilty.
26. But the importance of Rana is to make clear that it may well be unnecessary to give both directions. If the factual context of the case is such that the defendant is entitled to the protection of a Lucas direction then that protection can be incorporated in the s.34 direction. If a defendant gives an explanation for his failure to mention a fact and the same explanation for what is contended to be a lie then that explanation can and should be incorporated into the s.34 direction. Unless the jury rejects that explanation then it cannot draw an inference adverse to the defendant. Unless the jury rejects the defendant's explanation for his lie it will have little, if any, significance. If the jury takes the view that the defendant's explanation for telling the lie may be true, its only significance will be as to credibility and, generally, it will be of no use to draw to the jury's attention that limited utility. On the contrary, directing the jury as to both the effect of s.34 and lies is likely to complicate and confuse.
27. The judge should have confined his directions to a direction under s.34 whilst reminding the jury that unless they rejected the defendant's explanation for not revealing his trip to the petrol station and its purpose at the first interview then no adverse inference could be drawn.
28. Our exposition of the problem demonstrates the tortuous considerations which must be undertaken in applying the over-complicated jurisprudence in relation to s.34 and Lucas directions. Neither Blackstone nor Archbold refers to Rana. The guiding principle should be to avoid confusion, to avoid deflecting the jury from the real issues and to provide the jury with guidance as to how to approach those issues. In the instant case, there was no warrant for protecting the defendant from the consequence of his lie as to his visit to the petrol station and his purpose in going there once the jury was sure that he had lied. If the jury was sure he had lied, they were left without any sensible reason for the trip other than to fetch petrol for the fire-bomb. Accordingly, the examples of innocent reasons for lying which the judge advanced to the jury were unnecessary, confusing and unduly favourable to the defence.
29. The only protection to which the defendant was entitled was that the jury could draw no adverse inference from his failure to give his reason for going to the petrol station unless and until the jury rejected his explanation for that failure. The judge did direct the jury as to that but only in his unnecessary lie direction, not in his s.34 direction. That was an error.
30. The judge also relied on the defendant's failure to mention to the police the conversation between Bonser and Reece. The defendant had said in evidence that he did not hear any such conversation because he had gone to 11B before it took place. In those circumstances, the issue for the jury was whether it may have been true that the defendant was absent during the conversation between Bonser and Reece. The issue was not what inference the jury might draw from his failure to mention that conversation to the police. That issue had nothing to do with s.34 and should not have been referred to in the s.34 context by the judge.
31. In conclusion, the judge was, unfortunately, in error in failing to deal with the defendant's explanation for not mentioning the journey to the petrol station and his explanation for buying petrol in the context of his directions as to s.34. He was in error in making any reference to the general possibility of innocent explanations for a lie, in the context of this case, apart from the particular explanation the defendant himself gave, that he feared an accusation of driving whilst in drink. He was further in error in referring to the failure of the defendant to mention the conversation between Bonser and Reece, an issue which had nothing to do with inferences to be drawn as a result of s.34.
32. Further criticisms were made of the summing-up in relation to the judge's presentation of the evidence of Mrs Morley. The judge summarised Mrs Morley's evidence-in-chief but did not draw to the jury's attention that, in cross-examination, she accepted that she could not say where Bonser was standing in relation to the appellant at the time the threat was made. That must have been obvious to the jury. Nor, when he emphasised that both Morleys had heard the threat from inside their home on two occasions, did he refer to the fact that there was evidence that Bonser had been shouting at Urbacz from inside Urbacz's garden and that they had been shouting over each other in circumstances where it was possible the appellant might not have heard. Other witnesses did not give evidence of hearing the threats.
33. Similar criticisms were made of the judge in relation to his directions as to Reece Stephenson's evidence. He had agreed that the appellant might have been heading towards 11B during his conversation with Bonser. Thus, the defence had contended that the defendant might not have heard the conversation between Reece and Bonser.
34. It was unnecessary for the judge to condescend to the sort of detail on which reliance is now placed by the appellant. The plain fact was that at least one of the witnesses, Mr Morley, had heard the threat from within his house. That was strong evidence that the appellant must have heard it. When that fact is taken with the sequence of events and in particular the journey to the petrol station with a jerry-can and the throwing of the fire bomb shortly after, the question of how much the appellant heard pales into insignificance.
35. There were, as we have identified, certain errors in the direction given by a judge in relation to s.34 and Lucas directions. The facts of this case were simple and the inferences to be drawn from the admitted journey to buy petrol shortly after the threats issued to Urbacz were overwhelming. The errors cast no doubt upon the safety of the verdict.
36. The final ground advanced by the defence related to the co-defendant's interview with the police. In his interview, in which he admitted throwing the bomb, he named the appellant as being the person with him and encouraging him to do so. He subsequently decided to give no evidence. The judge directed the jury to disregard the co-defendant's account in interview as against the appellant. But the co-defendant remained in the jury's charge because he denied the offence of attempted arson with intent to endanger life. It is contended that the judge should have discharged the jury once it became apparent that the co-defendant Bonser was not going to give evidence.
37. We reject that ground. The judge correctly directed the jury to disregard the interview as against this appellant. It would have been wrong and unfair for separate trials to be ordered. The appellant draws attention to the fact that in a pre-sentence report the co-accused withdrew the assertion that the appellant had been present. The appellant contends that is fresh evidence not available at trial. That point was not pursued on appeal, and rightly so. There was no basis for permitting the co-accused to give fresh evidence in support of the defendant when he had chosen to give no such evidence at trial. The defence had not contended that the judge should discharge the jury at the trial. They were right to make no such application. The correct approach was the conventional process to try these two defendants together and to trust the jury to obey the directions of the judge.
38. For those reasons, this appeal is dismissed.