“34. (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) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, 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 - (a) a magistrates’ court inquiring into the offence as examining justices; (b) a judge, in deciding whether to grant an application under – (i)section 6 of the Criminal Justice Act 1987 (application of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act; or … (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. … 35. (1) At the trial of any person who has attained the age of fourteen years for an offence, subsections (2) and (3) below apply unless - (a) the accused’s guilt is not in issue; or (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence; but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence. (2) Where the subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal without good cause, to answer any question. (3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question. (4) This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so. (5) For the purposes of this section a person who, having been sworn, refuse to answer any question shall be taken to do so without good cause unless- (a) he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or (b) the court in the exercise of its general discretion excuses him from answering it. (6) Where the age of any person is material for the purposes of subsection (1) above, his age shall for those purposes be taken to be that which appears to the court to be his age. (7) This section applies - (a) in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section; (b) in relation to proceedings in a magistrates’ court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section.”
“I am not prepared to make any comment on any allegations at this interview because I have no confidence that the officers conducting this interview are investigating this allegations fairly. There are already a number of complaints of misconduct against the Leicestershire Constabulary including theft of money and substantial property, before the police complaints authority. My Solicitors have also informed me that they are about to issue proceedings in the High Court which involve allegations against the Leicestershire Constabulary. I am also concerned that items of possible evidential value in my defence have been seized and are not accounted for, accordingly I am not prepared to co-operate in this enquiry, also this is a very complicated matter which involves large numbers of documents. Access has been requested by my Solicitors and denied, without which I will be unable to do myself justice in an interview.”
“Shokat Chenia, who had a solicitor with him, made “No Comment” in relation to any of the questions that were asked of him, though, of course, as far as reaction to all of this is concerned, you have the manuscript document which he does submit and which is before you and which the prosecution say contains completely false allegations as to the way in which he was treated in the course of this investigation and it is really evidence of his reaction and what he was then saying about the whole situation. It is a matter entirely for you to evaluate its significance, if any. Certainly you will remember that DC Tait said that he asked the defendant continually if he was the owner of Kingstand and, in fact, there was no answer to that. In answer to Mr Pearse-Wheatley, he said that a letter was received in relation to access to documents and so on and that every request that was made for such access was complied with.”
“In the context of the interviews I have to give you another direction. Throughout his interviews, as you remember, the defendant answered “no comment” and you will remember DC Tait saying on, I think it was on five occasions in the course of those interviews, the defendant was given a caution. Nonetheless he answered “no comment” throughout. The defence which is put forward by Mr Pearse Wheatley on his behalf is this, is it not, that as far as count 1 is concerned you cannot be satisfied that he was an accomplice to the conspiracy in count 1. The prosecution have not proved the proposition beyond reasonable doubt that he was an accomplice. The defence, in other words, is that it was or may have been Foster and/or Adam who were in fact running this and Chenia himself was simply an innocent dupe. The same sort of proposition is advanced to you by the defence, is it not, in relation to count 2, but in relation to the other people who are named in that count. So that, on the face of it, appears to be the defendant’s defence, and he didn’t mention that when he was questioned under caution. The Crown say, and you may think, that in the circumstances when he was questioned he could reasonably have been expected to mention it, namely, to say to the police “look, it was Foster and Adam, nothing to do with me”, and “it was Lisa Abel, or whoever, nothing to do with me.”
“As already noted, the appellant elected not to give, or call, any evidence at the trial. Therefore he did not fail at the interview at the police station to mention, in the language of section 34(1), “any fact relied on in his defence at trial”.”
“… it is, in our judgment, plain from the words of the section that an inference may be drawn, adverse to a defendant, even though he did not give evidence. If it were otherwise, as Sir Brian Hutton CJ pointed out in McLernon [1995] Crim LR 604, subs (2)(c) of s 34 in the English statute, which permits the court to draw inferences in determining whether there is a case to answer, would have no effect. Furthermore, it would be absurd if the accused were able to preclude the drawing of inferences under s 34 by not giving evidence. Such an absurdity would be, as it seems to us, contrary to the purpose of ss 34, 35 and 36 … . As Lord Bingham … pointed out in Argent … , if s 34 is to be relied on the jury must resolve two questions of fact. First, that the defence relied on a particular fact, and secondly, that the defendant failed to mention it when questioned. A fact relied on may, in our judgment, be established by the accused himself in evidence, by a witness called on his behalf, or by a prosecution witness, in evidence in chief, or in cross-examination. In the present case, there was, it is common ground, no such fact. Accordingly no direction under s 34 was called for.”
“… There are two reasons why we reject the submission of Mr Osborne that the ambit of s.34 does not extend to cases where at trial the defendant gives a hitherto unadvanced innocent explanation for facts or events which he does not dispute occurred, but simply asserts that his own involvement was innocent by reason of matters of relationships explained by him for the first time. First, while we bear in mind the observations of Lord Bingham CJ in Bowden that the provisions of the Act should not be construed more widely than the statutory language requires, it seems to us that the words ‘any fact’ do not fall to be read only in the narrow sense of an actual deed or thing done but in the fuller sense contemplated by the Oxford-English Dictionary of ‘something that ... is actually the case ... hence, a particular truth known by actual observation or authentic testimony, as opposed to what is merely inferred, or to a conjecture or to fiction’. Second, it seems to us necessary to approach the meaning to be attributed to ‘any fact’ having regard to the apparent purpose of the statute and, in particular, the context and stage of proceedings with which s.34(1)(a) is concerned, that is to say the questioning of a suspect at a stage when, the facts available to the prosecution without the benefit of any explanation of the defendant, give rise to a suspicion or inference of his involvement in the crime under investigation, and the questioning is being directed to establishing whether such suspicion or inference is well founded in fact. The facts relevant to establishing whether or not the defendant is guilty of the crime in respect of which he is being interrogated go far wider than the simple matter of what might have been observed to happen on a particular occasion and frequently involve what reasons or explanations the defendant gives for his involvement in the particular event observed which, if true, would absolve him from the suspicion of criminal intent or involvement which might otherwise arise. ”
“The sort of circumstances we conceive to which paragraph (c) of subsection (2) applies are, for example, where the defence has involved putting a positive case on behalf of the appellant, perhaps supported by documents or whatever it may be, or, a more likely example perhaps, where the defendant has chosen to refuse to answer questions when initially interviewed but some time later, after consulting his solicitor, has produced a prepared statement or has given later answers.”
“The prosecution have not proved the proposition beyond reasonable doubt that he was an accomplice. The defence, in other words, is that it was or may have been Foster and/or Adam who were in fact running this and Chenia himself was simply an innocent dupe. The same sort of proposition is advanced to you by the defence, is it not, in relation to count 2, but in relation to the other people who are named in that count. So that, on the face of it, appears to be the defendant’s defence, and he didn’t mention that when he was questioned under caution. The Crown say, and you may think, that in the circumstances when he was questioned he could reasonably have been expected to mention it, namely, to say to the police “look, it was Foster and Adam, nothing to do with me”, and “it was Lisa Abel, or whoever, nothing to do with me.”
““The fact” not revealed in interview constituted the defence to the charge. In other words whether “the fact” not revealed was or may have been true was the issue in the case the resolution of which would determine the verdict. It is difficult to see how the jury could have rejected the appellant’s reason for not mentioning “the fact” without also rejecting the truth of “the fact” – the truth of each depended on the truth of the other. In our judgment, this element of circularity could only be resolved by a verdict founded not in any way upon the section 34 point but up[on the other evidence in the case.”
“The defendant, as part of his defence, has relied upon …. [The prosecution case is] [He admits] that he did not mention that fact when he was questioned under caution before being charged with the offence. The prosecution case is that in the circumstances when he was charged, he could reasonably have been expected then to mention it. If you are sure that he did fail to mention … when he was questioned, decide whether in the circumstances it was a fact which he could reasonably have been expected then to mention. If it was, the law is that you may draw such inferences as appear proper from his failure to mention this matter at the time. Failure to mention such a fact, cannot, on its own prove, guilt, but depending on the circumstances, you may hold it against him when deciding whether he is guilty, that is, take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so. [There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against him that he failed to mention this. That evidence is … If you think that that amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer, you may hold it against him.]”
“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight: 1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is. 2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. The right of silence remains. 3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act. 4. Therefore, 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 therefore 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 defendant’s silence. 5. If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference. It is not possible to anticipate all the circumstances in which a judge might think it right to direct or advise a jury against drawing an adverse inference. Nor would it be wise even to give examples as each case must turn on its own facts.”
“The question of what adverse inference can be drawn from an accused’s failure to give evidence is obviously similar to the questions which arise under section 34. Mr Shaw submits therefore that paragraphs 1 to 5 of the passage quoted [ie the passage from Cowan quoted above] apply with appropriate modifications to section 34. We consider, however, that the specimen direction on section 34, coupled with the usual direction on burden and standard of proof and the fact that the jury will inevitably understand from the form of caution itself that the accused was entitled to remain silent at interview, covers the matters dealt with in paragraphs 1 to 4. Paragraph 5 goes somewhat further than the specimen direction and the direction given by the judge in this case. Having regard to the views of this Court in Cowan , we consider that it is desirable that a direction along the lines indicated above should be given. There is as much a need to remind the jury of the circumstances in which a proper inference may be drawn under section 34 as under section 35. There is no basis for distinguishing between the sections in that respect. In fairness to the judge, it seems unlikely that a report of Cowan was available to him and certainly no submission was made to him that he should add to the specimen direction.”
“They [ie the defendants] testified that they acted on the strength of the advice of their solicitor who had grave doubts about their fitness to cope with police questioning (see paragraph 21 above). Their solicitor confirmed this in his testimony in the voire dire proceedings (see paragraph 18 above). Admittedly the trial judge drew the jury’s attention to this explanation. It is to be observed that the Court of Appeal found the terms of the trial judge’s direction deficient in this respect (see paragraph 27 above). In the Court’s opinion, as a matter of fairness, the jury should have been directed that if it was satisfied that the appellant’s silence at the police interview could not sensibly be attributed to their having no answer or none that would stand up to cross-examination it should not draw an adverse inference.”
“[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence.”
“Before his interview(s) the defendant was cautioned. He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he did say might be given in evidence.”
“51. We have no doubt that there was a prima facie case and any jury would so decide. We so conclude for the following reasons. 52. [A particular point on the evidence] 53. Whether there is a prima facie case (somewhat unusually) is a matter for the jury in this context. The failure to make a submission of no case to answer at the close of the prosecution cannot therefore be decisive. Indeed, as Mr O’Higgins submits, in each of these cases, either no submission will have been made or the judge will have decided there is a case to answer. However, the fact that no submission was made may be a telling indication as to the strength of the prosecution case. Here, no submission was made. We have no doubt that any such submission would have been hopeless. 54. In short, we have no doubt that there was a sufficiently compelling case for the appellant to answer. The jury could not have come to a different conclusion. The judge made it clear that the fact that the defendant had not given evidence could not prove his guilt. He emphasised the right to silence. He emphasised that the appellant had to prove nothing. The failure to give direction 4 could not affect the safety of the conviction.”
“A misdirection of the jury can result in a breach of Article 6. But it may not do so. In the same way it may not make a conviction unsafe. It all depends on the circumstances of the case ... In a case such as the present, we would expect this Court to be approaching the issue of lack of safety in exactly the same way as the ECtHR approach lack of fairness. The directions which a judge gives at a trial are designed to achieve the very fairness required by Article 6.1. As we understand the jurisprudence of the ECtHR , that Court does not adopt a technical approach to the question of unfairness. The ECtHR is interested as was pointed out in Condron in requiring fairness of the trial in all the circumstances. What the ECtHR was most concerned about in Condron was that there had been an infringement of the ‘fundamental importance of the right to silence, a right which ... lies at the heart of a fair procedure’. Approaching the present case, we therefore not only pay the greatest attention to the guidance given by the ECtHR in Condron , but also focus on the circumstances of this particular case and ask ourselves whether the omission of the required direction by the judge has in fact achieved unfairness, focusing on the importance of the right to silence, or impaired the safety of the conviction, in a process not drawn any distinction between the two tests.”
“We would suggest that, even if there was previously a difference of approach, that since the 1998 Act came into force, the circumstances in which there will be room for a different result before this Court and before the ECtHR because of unfairness based on the respective tests we will employ will be rare indeed ... we consider that if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe.” iii) In Forbes [2001] 2 WLR Lord Bingham, giving the opinion of the House of Lords said (at paragraph 24): “Reference was made in argument to the right to a fair trial guaranteed by Article 6 of the ECtHR. That is an absolute right. But, as the Judicial Committee of the Privy Council has very recently held in Procurator Fiscal (Dunfermline) v Brown ..., the subsidiary rights comprised within that article are not absolute, and it is always necessary to consider all the facts and the whole history of the proceedings in a particular case to judge whether a defendant’s right to a fair trial has been infringed or not. If no such consideration it is concluded that a defendant’s right to a fair trial has been infringed, a conviction will be held to be unsafe within the meaning ofSection 2 of the Criminal Appeal Act 1968 . We would endorse the recent judgment of the Court of Appeal Criminal Division ... in Togher. ” iv) In Milford Potter LJ reviewed the recent authorities of Francom, Togher and Forbes and said in paragraph 56: “It follows, that if in all the circumstances of the case the act or omission complained of amounts to a substantial or significant departure from the norms of fairness recognised by the ECtHR, then it will be treated as rendering the verdict unsafe, whereas some act or omission which in all the circumstances amounts to no more than a technical or insubstantial departure will not necessarily be so regarded.”
“In the instant case, we were of the view that the jury may have failed to appreciate on the directions given that they could only draw inferences against the appellants if they were sure that their failure to mention facts was not merely a result of the advice, however adequate or inadequate that explanation might be, and could only do so if they were sure that the particular applicant had not at that stage any explanation to offer or none that he believed would stand up to questioning or investigation.”
"Hello Mo, Shokat?..” and "
“Mr Chenia declined to answer any of the questions which the police put to him in interview. He has now given evidence in the trial. Similarly Mr Sidyot denied being concerned with drugs but otherwise declined to answer questions on the advice of his solicitor and again has given evidence. They both say that they declined to answer the police questions because of advice from their solicitors. They are of course adults and capable of making their own decisions, including decisions about whether or not to answer the questions; they cannot as it were shelter behind the solicitor’s advice. If you consider that any of their evidence given here states facts which either could reasonably have been expected to mention in interview then if you consider it fair to do so you may draw such inferences as appear proper from the failure of that defendant to mention those facts at the time. Such failure cannot alone prove guilt but can assist in proving it. Whether it does so here and if so to what extent are questions for you.”
“The next criticism is that the judge told the jury that he could not give them “a list of all the things relied on in court, because to do so would be rather a long list”
“53. … In the light of Condron v United Kingdom it is not the quality of the decision but the genuineness of the decision that matters. If it is a plausible explanation that the reason for not mentioning facts is that the particular appellant acted on the advice of his solicitor and not because he had no or no adequate explanation to give then no inference can be drawn. 54. That conclusion does not give a licence to a guilty person to shield behind the advice of his solicitor. The adequacy of the explanation advanced may well be relevant as to whether or not the advice was truly the reason for not mentioning the facts. A person, who is anxious not to answer questions because he has no or no adequate explanation to offer, gains no protection from his solicitor’s advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts. 55. In the instant case, we were of the view that the jury may have failed to appreciate on the directions given that they could only draw inferences if they were sure that their failure to mention facts was not merely the result of the advice, however adequate or inadequate that explanation might be, and could only do so if they were sure that the particular applicant had not at that stage any explanation to offer or none that he believed would stand up to questioning or investigation.”
“They [ie both the appellant and Shabbir Sidyot] say that they declined to answer the police questions because of advice from their solicitors. They are of course adults and capable of making their own decisions, including decisions about whether or not to answer the questions; they cannot as it were shelter behind the solicitor’s advice. If you consider that any of their evidence given here states facts which either could reasonably have been expected to mention in interview then if you consider it fair to do so you may draw such inferences as appear proper from the failure of that defendant to mention those facts at the time”
“ … you have got the transcripts there in front of you. You have heard a deal of this played for you in court. The transcripts you will know are there to help you, but it is your judgment as to what is said that must prevail, not the judgement of whoever it was who prepared the transcript. We have seen, have we not, a number of places in which the transcript is pretty plainly wrong, although that is for your judgment and not for mine. But the “capsules tractors” example is a pretty powerful one of that, is it not? It underlines, does it not, that although you have the transcripts there available to you, in front of you for you to take out, for you to use during the case, for you to use tomorrow in the course of your deliberations, the transcript does not govern you. You govern the transcript and you use your own judgment about what is being said, about who is speaking and about what they are speaking about in the various parts that are included on those transcripts. Remember that the quality of the recordings is frequently very poor and remember too that frequently what was said was ambiguous and capable of bearing more than one meaning, and what the true meaning is is a matter for you and not for anybody else. On the other hand, some of the recordings you may think were clear and explicit. Use your judgment in order to determine who was talking about what, why and with whom. Some important questions about the tapes may be these, but note the way I am phrasing this proposition – simply may be, because what is important about it is for you, not for me. But perhaps a couple of important questions are, what nicknames, if any, are used by and of Mr Shokat Chenia? Secondly, when a name is used, often at the beginning of a telephone conversation, of which the listening device of course only picked up one end, when a name is used, is it the name of the person speaking or the name of the person he is speaking to? Perhaps those are two important questions about the tapes. As to the transcripts, you have heard from Detective Constable Farr. He was responsible for pages 7 to 23. He listened to the tapes. He made notes of what had been said. He said “in many cases I had listened to it live and then I re-listened to the tapes afterwards. This transcript is as accurate as possible. Sometimes I would listen to it over and over again to make it as accurate as possible. Since I performed that exercise some enhancement has been done. My role was to produce an accurate record of what I could hear. Sometimes I couldn’t hear”, and then of course we get the blanks. Detective Constable Hodges also was a listening officer. “I listened contemporaneously to the conversations. Then subsequently I listened to the tapes and wrote down as much as I could decipher.”
“As I said to you, it is a matter for your judgment, but do be careful about filling in areas which have been left blank or dotted in our transcripts, because if you remember the officers who did the listening to all this and prepared the transcripts for us – Detective Constables Farr and Hodges – did say they listened to it over and again. Often they had been present when the conversation was taking place live, and they could go back time and again to it. If they have not been able reliably to say what is said, it is perhaps rather dangerous ground to embark on to say to oneself “oh, I know clearly what it is that is being said by whom” and so on, because obviously they have not been able to. Remember their evidence was not controversial among the defence. The defence were not saying “no, you are incompetent” or “you have not done the job properly” or anything of that nature. Everybody is agreed that it is difficult. So please remember that. Remember too that it is agreed that in these conversations Taylor does not appear and is not apparently present. Sidyot does not appear and is nowhere apparently present – I think he said to him or in his presence or anything of that nature – and nor are there any statements about Sidyot, or for that matter Taylor, in furtherance of the conspiracy. Do you remember that phrase that I put in paragraph 14? No-one is saying in here that there is anything in furtherance of the conspiracy which is admissible against anybody other than the people who are actually talking. So please bear that in mind. I hope you don’t feel that I am being impertinent to you in raising those matters with you.”