England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17th May 2016

LORD JUSTICE SIMON: This is an appeal against conviction. On 18th September 2015, in the Crown Court at Croydon before Mr Recorder Clover and a jury, the appellant was convicted of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 and was sentenced to a term of 18 months' imprisonment. At the trial he was represented by counsel, Mr Daniells-Smith. His application for an extension of time to apply for leave to appeal against conviction was referred to the full court by the single judge and we have granted leave. The need for an extension arises due to negative advice from trial counsel on the prospects of a successful appeal. The appellant subsequently instructed his present advocate, who required the relevant papers before providing further advice.

The uncontroversial facts can be stated shortly. The appellant, who is now aged 24, went out for drinks at the Treehouse public house in Croydon for the evening on 24th June 2014. At some point he waved down a taxi which was being driven by the complainant, James Toogood.

The prosecution case was that he was drunk when he got into the taxi and gave his destination. The complainant thought he said "Foxearth", which he took to mean Foxearth Road. On arriving at Foxearth Road, he tried to wake the appellant, who had fallen asleep in the back of the taxi, and asked for his fare. The appellant said he had no money and so Mr Toogood drove him back to Croydon. When they arrived, he pulled over and told the appellant to get out of the vehicle. When this did not have an effect, he reached into the vehicle to get him out. At this point, according to the prosecution case, the appellant proceeded to assault Mr Toogood by punching him to the face. The prosecution relied on the evidence of Mr Toogood, the evidence of his injuries and the evidence of the appellant's response on being arrested. When interviewed by the police, he answered no comment to all questions put to him.

The defence case, as set out in a defence case statement and put in cross-examination, was that the appellant had acted in lawful self-defence. He woke up to find that he had been dragged out of the vehicle and onto the floor and then grabbed around the neck. He did not live at Foxearth, he told the taxi driver to take him to Forestdale. He had no money on him and intended to pay for the taxi when he got home. Significantly in the context of the present appeal, the appellant did not give evidence; and the factual focus of the appeal is the circumstances in which this decision was made.

James Toogood gave evidence that he drove to Foxearth Road after being told to take his passenger there, stopped the vehicle and asked which house number he wanted and for his fare. The appellant replied, "I haven't got any fucking money", or words to that effect. He told the appellant that he would take him back to Croydon and find a police officer and he set off with that intention. At some point the appellant began shouting "Let me out, let me out". Mr Toogood decided he would let him out and simply get back to work. He opened the door, but at that point the appellant would not get out. He reached in and grabbed hold of him and said, "For God's sake get out of the cab". The appellant initially refused to do so, putting his feet up against the door and the side panel. He then shook the appellant in an attempt to persuade him to get out.

At this point, on the witness's evidence, the appellant got out of the cab and attacked him violently, punching him to the face, to the abdomen and elsewhere, as though he were going mad, using both fists. He fought back to get the appellant off him. He put his arms around the appellant. He then fell to the ground. He was now on top of the appellant and feeling exhausted. He said, "Let's call it a draw, son". He was on his hands and knees, trying to stand up, when he said the appellant jumped up and started kicking him to the head and body. He was unable to retaliate and did not retaliate. He shouted out, "You're killing me". He cried out for help but no-one came. He was on his knees and tried to cover his head with his hands. He could not say how many blows he received. In his police statement he said there were ten blows, although in evidence he said it was about six or seven. He went to hospital, where he said he had two broken fingers in addition to his facial injuries.

In cross-examination, he denied that he had "lost it" and gone over the top, attacking the appellant in an attempt to get him out of the cab. He denied that he had exaggerated his injuries: he thought he had fractured two fingers and that was why he had two pins put in his hand.

The statement of Dr Verkirk, the A&E treating physician, was read to the jury. The complainant had multiple abrasions and lacerations to his face. He had bruising and swelling over the joints of his left hand and an X-ray revealed an angulated fracture of the left little finger. He was sent to St George's Hospital for this injury.

A further statement from another doctor, Dr Jones, was read to the jury. She described other injuries to the complainant. He had an abrasion over his nose, swelling to both temples, a bite mark on his left shoulder, swelling to his right thumb and swelling to his left little finger. There were photographs of these injuries available to the jury.

Police Constable Ellingham gave evidence that he arrived at the scene shortly after the 999 call was made. He spoke to the appellant, who was staggering, his eyes were dilated and his clothing was dishevelled. He had fresh grazes to his face, but no blood. There were marks on his back which suggested he had been lying on the grass. There were also photographs before the jury showing grazes to the appellant's face. The police officer asked the appellant if he had been involved in a fight, and he replied, "I've been a good boy. I'm sorry, I'm sorry. Can you just let me go home". He arrested the appellant on suspicion of assault following the caution and, as he was being handcuffed, the appellant replied, "I'm sorry, I'll be a good boy. I've been naughty, I know". His behaviour then changed and he asked the officer to take off the handcuffs so that they could fight it out. The police officer described the appellant's behaviour as erratic and that it changed four or five times within the space of five minutes: one moment he would be shouting and struggling, and the next apologising and saying that he had been bad.

At the close of the prosecution case, Mr Daniells-Smith indicated that the appellant would not give evidence and the Recorder gave the conventional warning in the presence of the jury: "Have you advised your client that the stage has now been reached at which he may give evidence and, if he chooses not to, the jury may draw such inferences as appear proper from his failure to do so".

Following speeches from the prosecution and the defence, the Recorder then proceeded to sum up the case to the jury. He gave the standard directions in relation to the jury's function, the burden and standard of proof. He reminded them that the prosecution case rested on the evidence of Mr Toogood and the evidence of the injuries suffered by him and the appellant, and on the appellant's conduct and what he said to the police officer in the minutes after his arrest. He told the jury that no adverse inference could be drawn from the appellant's silence in interview. This was presumably on the basis that he did not advance any positive case at trial which he might have mentioned in interview. That was generous to the appellant since he had, through counsel, advanced a defence of self-defence. That would have justified a direction in accordance with section 34 of the Criminal Justice and Public Order Act: see Webber, Lyons and Ashton [2004] 1 WLR 404 and Archbold 2016 paragraph 13-365.

The Recorder outlined the defence which was put to Mr Toogood, that he had given a false and exaggerated account and that, having been attacked by Mr Toogood, the appellant had acted instinctively to defend himself. The Recorder then gave a conventional direction on self-defence, including the need for the prosecution to disprove the defence. He also directed the jury on the inferences that they might draw from the fact that the appellant had not given evidence in his own defence. There was no issue that this was in a conventional form and there is no complaint about it. At page 14C in the summing-up he added:

"You heard me ask the question that the law required me to ask in your presence so that you should know that the decision not to give evidence is an informed decision and one made with knowledge that you, the Jury, may draw such inferences as appear proper from the failure to give evidence."

He also told the jury to put out of their mind the appellant's "relatively modest criminal record" since it went only to his credibility which did not arise since he had not given evidence.

As we have noted, no criticism is made of the summing-up. The issue raised on the appeal is entirely directed to the circumstances in which the appellant did not give evidence in his defence.

The appellant's case, in summary, is that he was not able to make an informed decision about giving evidence because of the deficiencies in the advice given by his trial counsel. We turn then to the evidence on this issue.

The appellant made a statement dated 10th December 2015. In his oral evidence he said that he was worried about giving evidence but was prepared to do so. This is common ground. It was also the evidence of his mother, Mrs Yeoll, who described him as "very nervous"; and it was the evidence of Mr Daniells-Smith. There had been a change of counsel and the first time they met Mr Daniells-Smith was on the morning of the trial. When he arrived at court he talked about asking for a Goodyear indication if he pleaded guilty. He did not intend to plead guilty, but in any event the judge declined to give a Goodyear indication because there was an issue as to whether he had kicked the complainant. The appellant thought things went reasonably well on the first day during Mr Toogood's evidence. This too is common ground: it was the evidence that Mrs Yeoll and Mr Daniells-Smith also thought that the cross-examination had gone well.

At the end of the day there was a conference at which his mother and brother were also present. They told Mr Daniells-Smith that he was anxious about him giving evidence, presumably with a view to some reassurance. Mr Daniells-Smith at this point said he did not have to give evidence if he did not want to. He said he could rely on the poor performance of the complainant and that it was for the prosecution to prove his guilt and not for him to prove his innocence; and that if he did not give evidence it could not make matters worse. We will return later to this evidence.

The appellant said that Mr Daniells-Smith also indicated that if he did give evidence, he would be asked questions by the prosecutor and this might make him look bad in the eyes of the jury. He was not told that if he did not give evidence the judge would tell the jury that this could be used against him in reaching its decision on his guilt. According to the appellant, Mr Daniells-Smith made it clear that it was his decision and he could not blame anyone if he was found guilty and had not given evidence. It was left on the basis that he would think about it overnight.

There was a conference the next day, and again his mother and brother were there. It is common ground that this took place at 10.20 am, although there is a disagreement as to why it was so late. In any event, Mr Daniells-Smith asked the appellant if he had reached a decision, and he told him he had decided not to give evidence. On this occasion the barrister said that if he did not give evidence the prosecution would not be able to make a closing speech and the jury would only hear the defence speech and the summing-up. When they went back into court his counsel told the judge that he was not giving evidence. The judge then gave the warning in the presence of the jury and, although his barrister tried to object, the prosecutor was permitted to make a closing speech. After he was convicted his barrister came down to the cells. He did not remember signing anything then or at any time, but he was in a state.

The appellant's mother, Jackie Yeoll, made a statement dated 25th November 2015. She recalls the barrister saying in a conference at the end of day one that the appellant did not have to give evidence, it was up to the prosecution to prove his guilt and not for him to prove his innocence. She was concerned about the impression that this might leave with the jury. He said that if he did not give evidence it would not look bad; it would be neutral, neither helping nor hindering his case. She was sure there was no mention of an unfavourable inference if he did not give evidence or that this might result in an adverse comment from the judge. She said she decided to ask the solicitor who had been acting throughout; although she was not present in court, for her advice. She rang her that evening and the solicitor said they should trust the advice of the barrister.

They returned the next day and the barrister asked whether her son had decided whether or not to give evidence. She was sure that there was no further discussion about the consequences of not giving evidence in terms of the jury being entitled to draw an adverse inference from his failure to do so. In any event, at this point her son, the appellant, agreed that he would not give evidence. She was 100 per cent sure that the appellant was not asked to sign anything and she did not see him sign anything. She was with him at every point during the two days of his trial up to the point when he was convicted. Just over a week after the trial she sent an e-mail to the solicitors complaining about her son being sent to prison. The e-mail included a complaint about the barrister's advice not to give evidence.

The appellant's brother, John Good, made a statement on 10th December 2015. His statement and his oral evidence was to the effect that after the first day in court the barrister advised the appellant that he did not have to give evidence and that this would not damage his case or make it worse, whereas if he gave evidence he could be questioned by the prosecuting barrister and might not do well. On the following day the barrister asked the appellant what he had decided and said that if he did not give evidence it would not be held against him.

There was a waiver of privilege and Mr Daniells-Smith was asked to comment on the grounds of appeal. He made a statement dated 28th January 2016 and gave evidence before us in which he adopted that statement.

He has been practising in the criminal field as a barrister since the 1980s. He received his instructions during the early evening before the trial. According to his statement, the defence of lawful self-defence using force that was no more than proportionate and reasonable was a difficult defence, not least once the evidence had been called and the contrast between the 20-year-old appellant and the 68-year-old Mr Toogood became apparent. Mr Toogood had decided to retire after this incident. The photographs of Mr Toogood's injuries at the time also posed considerable difficulties.

Mr Daniells-Smith said that he started by explaining the trial procedure and canvassed the idea of pleading guilty and seeking a Goodyear indication of the sentence likely to be passed if he did so. In fact, as we have noted, the Recorder declined to give a Goodyear indication in the light of a number of factual issues in relation to kicking.

Mr Daniells-Smith described cross-examining the complainant "vigorously", making two points: first, he had not followed the usual procedure of licensed cab drivers and taken his fare to the nearest police station; and, secondly, that his evidence about having broken two fingers was plainly wrong since the medical evidence showed clearly there was only one broken finger.

Following the close of the prosecution case there had been a discussion during which he explained to the appellant and his family the options that were open to him, and in particular the possibility that he would not give evidence. This was something of which the appellant seemed previously unaware. He could see that the appellant was anxious and explained that a witness is alone in the witness box and cannot turn to his family or barrister when asked difficult questions. The appellant seemed attracted by the idea that he need not be cross-examined. He said that he also explained the adverse inference that the jury would be directed to draw if he did not give evidence. He was asked what he would have said and replied that he generally explained the matter in simple language. We return later to what he meant by this. In any event, it was agreed that the appellant would discuss his decision with his family and give his decision in the morning.

The following morning Mr Daniells-Smith had to explain the options again and repeated what he had said about the adverse inference. The appellant then decided that he would not give evidence. At that point he told him that he would ask him to sign the back sheet of his brief, explaining that this was for his own protection if there was criticism or a challenge to the decision later. In fact, there was no time to do so as they were called back into court.

According to Mr Daniells-Smith's evidence, the appellant appeared greatly relieved at not having to give evidence, but always understood that the jury might draw an adverse inference from his no comment interview, although they would be directed only to adopt this course if the rest of the case was strong. He had explained the advantages of not being cross-examined, as well as the disadvantages. He accepts that he made one mistake. When they returned to court and the appellant asked, what happens now, and he told him that the judge would give a formal warning about not giving evidence and then he would make a closing speech for the defence. That was a mistake because the prosecution was entitled to give a closing speech to the jury.

After the verdict Mr Daniells-Smith went down to the cells to see the appellant, and it was at that point that the appellant signed the endorsement. Unfortunately, the brief was later mislaid by his clerks. Nevertheless, he says that getting the client to sign the endorsement when not giving evidence is his invariable practice: "I would never leave court without having obtained this".

Mr Blandford, who now appears for the appellant, submits that the appellant's decision not to give evidence came about as a result of his being given erroneous legal advice from his counsel. Although the appellant was prepared to give evidence, he was advised that the complainant had been inconsistent and made a poor impression when giving evidence and was told it would not harm his defence if he decided not to give evidence. Mr Blandford accepts that it is for a defendant to make the choice, but he submits that it must be a properly informed choice. If he were not informed (i) of the adverse inference which might be drawn by the jury if he did not give and/or (ii) that, given his no comment interview, the jury would in effect not hear his case if he did not give evidence, then he could not have made a properly informed choice.

Mr Warrington, who appears for the prosecution on this appeal as he did at trial, submits that if the court finds that trial counsel advised that, if the appellant did not give evidence, the Recorder would direct the jury of the adverse inference that might be drawn and he decided not to give evidence with full understanding of the consequences, there are no grounds of appeal. He invites attention first to counsel's evidence that he properly advised the appellant about the adverse inferences that might be drawn from his not giving evidence, albeit conceding that he made an error in relation to the prosecution final speech. It was counsel's evidence that his brief was appropriately endorsed, albeit it could no longer be located; and the Recorder raised the issue with the appellant in open court and in front of the jury. If, on the other hand, the court were to find that counsel had erred in his advice and that this resulted in the appellant not giving evidence, he submits nevertheless that the conviction was safe. He invites attention to the Recorder's warning not to draw an adverse inference from the appellant's silence in interview, the defence of lawful self-defence that was put to Mr Toogood and the full summing-up direction on self-defence, the evidence of a significant difference between the injuries sustained by the appellant and the complainant, the evidence of comments against interest made by the appellant, and the evidence of the appellant's aggressive behaviour while detained by police.

We have considered these submissions. We begin with a few introductory observations.

First, the case of Day [2003] EWCA Crim 1060 makes clear that in a case where the conduct of a trial advocate is criticised, the court's focus will be on the safety of the conviction. Paragraph 15:

"While incompetent representation is always to be deplored; is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1096, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe."

Secondly, it is the duty of counsel to advise in an appropriate case, which this case was, on the desirability of giving evidence and the consequences as a result of section 35 of the Criminal Justice and Public Order Act 1994 of not doing so. Where a defendant decides not to give evidence, whether following advice or notwithstanding advice, it should be the invariable practice for counsel to make a record of the decision with a summary of the reasons. He should read it out to the defendant, who should then be asked to sign it: see Bevan 98 Cr App R 354 and Archbold 2016 paragraph 4-382. This should be done before the time when the judge gives the warning about not giving evidence set out in section 35(2) of the 1994 Act. A photocopy of this endorsement should be made in chambers or in the office of an advocate as a record of the advice and the decision, so as to avoid what is said to have happened in the present case.

Thirdly, the ultimate question for this court is whether the failure of the appellant to give evidence renders the conviction unsafe. We have to make our own assessment of that evidence and then ask ourselves what effect it has on the safety of the conviction: see Archbold 2016, paragraph 7-50.

So far as the facts are concerned, we are satisfied that the appellant did not make an informed decision not to give evidence. We accept that Mr Daniells-Smith may have given abbreviated advice in which he sought to warn about the adverse inference that might be drawn from the appellant not giving evidence, but we are clear that it was not sufficient. There were three problems with the advice he gave. First, he told the appellant that things could not get worse if he did not give evidence. This was wrong. He should have said that if the appellant did not give evidence the jury would be directed that this might be held against him, in which case his not going into the witness box would make matters worse. Second, the nature of the adverse inference was not explained. Mr Daniells-Smith is not to be criticised for using simple language to explain what he meant by an adverse inference, but his explanation was inaccurate. He said this:

"I would generally say that the judge would tell the jury that they had only heard one side of the story and they might be wondering why they had not heard from the defendant, and the judge would then go on to advise them how they should approach the issue. If it were a strong case the jury could take his silence as counting against him."

This was inaccurate because, as the Recorder correctly addressed the jury:

"If aspects of the prosecution clearly call for an explanation, which the defendant is in a position to give ... then a failure to give any explanation may ... allow the drawing of an inference that there is no explanation, or none that will stand up to cross-examination."

Thirdly, it meant there was a reduced basis for the defence of self-defence.

We have reached this conclusion for the reasons we have set out, and it is therefore unnecessary to form a concluded view about whether the appellant endorsed counsel's brief, other than to say that if it were procured after the trial, then it was too late.

We turn then to the second question in the light of the inadequacy of the advice leading to the appellant's decision not to give evidence: is the conviction unsafe? We have concluded that it is not unsafe. Although the appellant gave no comment answers in interview, a positive case of self-defence was advanced by the defence and a full self-defence direction was given, notwithstanding the lack of evidence and without this case being challenged in cross-examination.

There is no complaint about the summing-up, which in our view was a model in a short case. It follows that we approach the facts as they were outlined to the jury. On this basis there was, first, evidence of the erratic reaction of the appellant following his arrest, his apologies, his threat to fight the officer if his handcuffs were removed and his change of behaviour from one moment to another; all these were inconsistent with an honest belief in the need to use force to defend himself. Secondly, there was the gross disparity of injuries and the nature of the injuries to the complainant, which were strong indications that more than proportionate force had been used. Thirdly, this was a strong case of a gratuitous and violent loss of temper against an elderly man by a much younger man who had drunk far too much that night.

In these circumstances, and notwithstanding the deficiencies in the advice which led him not to give evidence, we are satisfied that this conviction is safe and accordingly the appeal is dismissed.