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GILL, R v. [2000] EWCA Crim 49 (21st July, 2000)
Case No: 99/07637/X1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON-UPON-HULL
(HIS HONOUR JUDGE CHARLESWORTH)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21st July 2000
B e f o r e :
LORD JUSTICE HENRY
MRS JUSTICE BRACEWELL
and
MR JUSTICE RICHARDS
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REGINA
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and -
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STEVEN
IAN GILL
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Robert Stevenson Esq (instructed for the Appellant)
Anil Murray Esq (instructed for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
MRS JUSTICE BRACEWELL:
1. This is the judgment of the Court. On 12th July 2000 this court allowed
the appellant's appeal against conviction and ordered a retrial. We now give
our reasons.
2. On 29th November 1999 at the Crown Court at Kingston upon Hull before His
Honour Judge Charlesworth and a jury, the appellant and his co-accused Darren
Taylor, were convicted of possession of a Class A drug with intent to supply,
and were each sentenced to four years' imprisonment.
3. The appellant appealed against conviction with the leave of the Single
Judge on the ground that the Judge had failed properly to direct the jury in
respect of Section 34 Criminal Justice and Public Order Act 1994.
Background Facts
4. On the morning of the 8th June 1999 the police went to the appellant's
flat. The appellant and his co-accused Darren Taylor were present. As the
police entered, Taylor threw a bag of heroin out of the window. During a
search, police recovered three wraps of heroin from inside a Kinder Egg and
drugs paraphernalia. Both men agreed that heroin was sold, but "... not by
me, but by the other".
5. It was the prosecution case that both men were in possession of all of the
heroin, and were working together with intent to supply to another.
6. It was Gill's case that the wraps in the Kinder Egg were his for his own
use which he had bought from Taylor. The appellant alleged Taylor was the
dealer. He denied knowledge of the bag of heroin.
7. When the police entered the appellant's flat, the appellant was behind the
door and Taylor was up against the window. The heroin inside the Kinder Egg
was wrapped in lottery pay slips. The officers also found:-
a) a brown stained razor blade, which the appellant said he used to cut up
cigarette filters;
b) an empty vitamin bottle in the kitchen- said to be used to dilute heroin
before use;
c) a measuring scoop in the hearth and a needle.
8. The scoop from the appellant's flat was scientifically examined: it bore
microscopic traces of heroin. The wraps from the Kinder Egg weighed 36, 42 and
48 milligrams. There were marks on the reverse of the scoop, which indicated
that it had been tapped to ensure all the contents came out.
9. At Taylor's flat the police found two lottery number selection cards
completely covered by a figurine. The cards had been cut off at each end.
Three of those cut off portions had been used to make the wraps found in the
Kinder Egg. Seven other lottery selection cards were on top of a microwave
oven. The officers also searched the pedal bin and found a plastic wrap with
heroin on it together with a paper wrap made out of a lottery number selection
card, three lottery number selection cards and five pieces of scorched tinfoil
scrunched up. In the dustbin, more portions of lottery selection cards were
found.
10. When interviewed the appellant said that, at the time of his arrest, he
was using four or five bags of heroin a week. He had bought four bags on the
morning of his arrest but declined to say who the supplier was. That morning
he had used one bag but declined to say how long it would be before he would
need another. He admitted that the razor blade and vitamin C was his but said
that he had never seen the scoop, cut lottery cards or bag of heroin before.
He declined to disclose what his movements had been that day. Then he declined
to make any further comments.
11. In evidence the appellant said that during his police interview, he had
been prepared to answer only questions regarding his use of drugs. He had said
"No Comment" because he did not want to implicate anyone else, including
Taylor.
12. It is this aspect of the evidence which gives rise to the appeal against
conviction, namely the significance of the "no comment" responses in interview
and the directions in respect of those responses by the Judge to the jury.
Criminal Justice and Public Order Act 1994
13. The relevant part of S34 provides that:
"(1) Where in any proceedings against a person for an offence, evidence is
given that the accused-
(a) at any time before he was charged with the offence, on being questioned
under caution by a constable trying to discover whether or by whom the offence
had been committed, failed to mention any fact relied on in his defence in
those proceedings, or
(b) ...
being a fact which in the circumstances existing at the time the accused could
reasonably have been expected to mention when so questioned, charged or
informed, as the case may be, subsection (2) below applies.
(2) Where this subsection applies
...
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the
offence charged,
may draw such inferences from the failure as appear proper.
(3) Subject to any directions by the court, evidence tending to establish the
failure may be given before or after evidence tending to establish the facts
which the accused is alleged to have failed to mention."
1. 1. There are cases where it is inappropriate to give a direction under s.34
because the drawing of an inference under the section will depend upon the
making of findings which the jury cannot properly make unless they are sure of
the defendant's guilt independently of the section. In those circumstances a
s.34 inference cannot logically help the jury to determine whether the
defendant is guilty; and the giving of a direction can serve only to confuse
rather than to assist. Here the fact relied on in his defence which he failed
to mention was that he was a customer and not a dealer.
2. A markedly similar situation arose in the case of R -v- Mountford
[1999] Crim LR 575. The Police entered the flat of W where the appellant
Mountford was staying and executed a search warrant. The appellant was seen to
drop a package out of the window, which when recovered was found to contain
heroin. On arrest both men were taken to the police station and interviewed.
The appellant made no comment. W made a witness statement implicating the
appellant and gave evidence against the appellant at his trial on a charge of
possessing a Class A drug with intent to supply. The appellant gave evidence
that W was the dealer who supplied him with drugs, and who had thrown him the
packet of heroin as the Police broke in. He stated in evidence that he had not
volunteered this information when interviewed because he did not know what W
had said and did not want get him into trouble.
3. The Judge rejected a submission that he should not allow the jury to
consider whether pursuant to S34 Criminal Justice and Public Order Act 1994 an
adverse inference could be drawn from the fact that the appellant failed to
mention a fact relied on in his defence. The appellant was convicted, and he
appealed on the basis that the judge's ruling and subsequent direction were
wrong. The conviction was quashed and the CA held that "the fact" not revealed
was the defence to the charge.
4. Whether "the fact" not revealed was, or might have been true, was the issue
in the case, the resolution of which would determine the verdict. It was
difficult to see how the jury could have rejected the appellant's explanation
for not mentioning "the fact" without also rejecting the truth of "the fact" -
the truth of each depended on the truth of the other. There was no evidential
basis upon which the section 34 issue could have been resolved as an
independent issue, thus permitting an ensuing adverse inference to provide
additional support for the prosecution's case. The Jury should not have been
invited to consider S34, and the verdict was unsafe in consequence.
5. In the current appeal the essence of Gill's defence was that Taylor was the
supplier, but he had not volunteered that information at interview because he
did not want to get him into trouble. In considering S34 the jury were in the
same position as in Mountford, in that in resolving the issue whether Gill
could have been expected to mention it at the time, they could only be sure he
was lying and reject his explanation if they concluded that Gill was the
dealer. It follows therefore that the Judge should not have left to the jury
issues in respect of Section 34.
6. In the particular circumstances of this case, as in Mountford, we
consider that the way in which the matter was left to the jury renders the
verdict unsafe.
7. This case again highlights the need for careful consideration of whether to
give a direction under Section 34, together with the related question whether,
if such a direction is not given, the jury should be directed not to hold
against a defendant any failure to answer questions in interview. It is a
matter which counsel should be prepared to discuss with the judge before
closing speeches.
8. Even if we had considered it appropriate in principle for the judge to give
a direction under section 34, we have concluded that the particular directions
to the Jury in the current appeal were defective.
9. In R -v- Birchall [1999] Crim LR 311 CA the court was reluctant to
countenance the view that direction of a jury called for the mouthing of a
number of mandatory formulae and departure by a Trial Judge from a prescribed
form of words would by no means always justify the upsetting of a jury's
verdict. However standard directions are devised to serve the ends of justice
and the drawing of inferences from silence is a particularly sensitive area
with the potential for wrongful convictions in the absence of careful and full
directions by the Judge.
10. The Court of Appeal has repeatedly emphasised the importance of accurate
directions in the face of a defendant's silence, and the specimen direction of
the Judicial Studies Board dated May 1999 draws attention to the problems
caused by the operation of this section, and the desirability, before a
direction is given, to discuss the matter with counsel before final speeches.
This was not done at trial in this case, and neither did the Judge follow the
terms of the specimen direction.
11. As set out in R -v- Argent [1997] 2 Cr App R 27 there are six
conditions which must be met before the jury may draw an inference adverse to a
defendant in respect of failure to mention at an earlier stage a fact relied on
in his defence.
a) There must be proceedings against the appellant for an offence.
b) Failure to answer had to occur before the appellant was charged.
c) Failure to answer had to occur during questioning under caution by a
constable.
d) Questioning had to be directed to trying to discover whether or by whom the
offence had been committed.
e) The failure had to be not mentioning any fact relied on in the person's
defence in those proceeding.
f) The fact the appellant failed to mention had to be one which in the
circumstances existing at the time of interview he could reasonably have been
expected to mention. The time referred to is the time of questioning and
account must be taken of all the relevant circumstances existing at the time.
The courts should not construe the expression "in the circumstances"
restrictively.
12. The first four conditions do not give rise to any argument in this case
and were plainly satisfied. However in respect of conditions 5 and 6 the Judge
did not give clear directions to the jury in respect of evidence which was
within the province of the jury as a tribunal of fact. It was incumbent on the
Judge to identify the fact which the appellant was relying on in his defence
namely that Taylor was the supplier and the appellant was merely a user. It
was further essential for the Judge to direct the jury that it was for them to
decide whether in the circumstances it was something which he could reasonably
have expected to mention at that time, and if it was, they had a discretion in
that they might, as opposed to should, draw such inferences as appeared proper
from his failure to do so.
13. By a careful cross referencing of various passages in the summing up it
is possible to identify that the Judge did refer to the fact relied on when he
said at page 36
"but he [appellant] had only said `no comment' because he did not want to land
anyone else in it including Mr Taylor but it was Mr Taylor who was the
dealer."
14. There was no clear direction to assist the jury in their task of
identifying the precise fact, or whether it was something which he could
reasonably have been expected to mention, nor did the Judge at any time in his
summing up direct the jury that the six conditions triggered a discretion to
draw inferences. The jury may well have been under the impression that once
they identified a fact relied on, which in the circumstances the defendant
could reasonably have been expected to mention, then they were under a duty to
draw an adverse inference.
15. The six conditions in R -v- Argent are not the end of the matter.
In R -v- Cowan [1996] 1 CAR 1, 7, the Lord Chief Justice highlighted
these essential features:
a) The Judge must tell the jury that the burden of proof remains upon the
prosecution throughout and what is the standard required.
b) The Judge must make clear to the jury that the defendant is entitled to
remain silent. That is his right and his choice.
c) An inference from any failure to give evidence cannot on its own prove
guilt.
d) The jury must be satisfied that the prosecution have established a case to
answer before drawing any inferences from silence. Of course the judge must
have thought so, or the question whether the defendant was to give evidence
would not have arisen. But the jury may not believe the witnesses whose
evidence the judge considered sufficient to raise a prima facie case. It must
be made clear to them that they must find there to be a case to answer on the
prosecution evidence before drawing an adverse inference from the defendants
silence.
e) If despite any evidence relied on to explain his silence, or in the absence
of any such evidence the jury conclude the silence can only sensibly be
attributed to the defendants having no answer or none that would stand up to
cross examination they may then draw an adverse inference.
16. The importance of those features is apparent from the decision of the
European Court of Human Rights in Condron -v- United Kingdom (judgment
of 2 May 2000). At the trial the Judge had directed the jury in terms of the
specimen direction in its pre-Cowan form. The Court of Appeal, by
reference to the dicta of the Lord Chief Justice in Cowan, considered
that additional wording would have been desirable but that its omission did not
render the conviction unsafe. The Strasbourg court, however, held that the
direction was inadequate and resulted in a breach of the defendant's right to a
fair hearing under Article 6 ECHR:
"However, in the instant case the applicants put forward an explanation for
their failure to mention [a fact] during the police interview .... Admittedly
the trial judge drew the jury's attention to this explanation. However he did
so in terms which left the jury at liberty to draw an adverse inference
notwithstanding that it may have been satisfied as to the plausibility of the
explanation. It is to be observed that the Court of Appeal found the terms of
the trial judge's direction deficient in this respect .... In the Court's
opinion, as a matter of fairness, the jury should have been directed that it
could only draw an adverse inference if satisfied that the applicants' silence
at the police interview could only sensibly be attributed to their having no
answer or none that would stand up to cross-examination.
... It is true that the judge was under no obligation to leave the jury with
the option of drawing an adverse inference from their silence and, left with
that option, the jury had a discretion whether or not to do so. It is equally
true that the burden or proof lay with the prosecution to prove the applicants'
guilt beyond reasonable doubt and the jury was informed that the applicants'
silence could not 'on its own prove guilt' .... However, notwithstanding the
presence of these safeguards, the Court considers that the trial judge's
omission to restrict even further the jury's discretion must be seen as
incompatible with the exercise by the applicants of their right to silence at
the police station" (paras 61-62).
14. 14. The Judge in the present case failed to direct the jury in unequivocal
terms that any inference cannot on its own prove guilt, that they must be
satisfied of a prima facie case against the defendant and that only if they
rejected the explanation for silence and concluded that the failure could only
sensibly be attributed to no answer or none that would withstand cross
examination, could they then consider whether to draw the inference adverse to
the defendant.
15. The Jury may have been left with the impression that they could and should
draw an adverse inference irrespective of the plausibility of the explanation.
In the absence of proper directions the jury may have drawn an adverse
inference without being satisfied of the various essentials.
16. This court has no means of knowing whether the appellant's failure to
mention at interview a fact subsequently relied on at trial played a
significant role in the jury's decision to convict.
17. For those reasons we have found the conviction is unsafe.
© 2000 Crown Copyright
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