Howell, R v [2003] EWCA Crim 1

[2003] EWCA Crim 01

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM SWANSEA CROWN COURT

(His Honour Judge Martin Stephens QC)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17 January 2003

Before

LORD JUSTICE LAWS

MR JUSTICE NEWMAN

SIR RICHARD TUCKER

Between

Jeffrey John HowellAppellant

The QueenRespondent

Linda Penelope Dobbs QC and Gillian Jones (instructed by

Corker Binning) for Appellant

Geraint Wyn Walters (instructed by CPS) for Respondent

Hearing Hearing date : 22 November 2002

JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

[1]On 28 July 1998 before His Honour Judge Martin Stephens QC at the Swansea Crown Court this appellant was convicted by the jury of an offence of wounding with intent, charged in count 2 of the indictment, and was sentenced to 6 years imprisonment. He was acquitted of attempted murder (charged in count 1). On 14 May 1999, the full court (Evans LJ, Curtis and Aikens JJ), at a hearing not attended by counsel, refused his renewed application for leave to appeal against conviction. However those advising him at length took up his case with the Criminal Cases Review Commission (“the Commission”). The Commission has now referred the case to this court pursuant to s.9(1) of the Criminal Appeal Act 1995. The Commission’s Statement of Reasons shows that, in summary, they entertained two concerns.(1) The appellant’s right to a fair trial under

Article 6 of the European Convention on Human Rights

(“ECHR”) was arguably violated in that the trial judge effectively withdrew from the jury the question whether the appellant had remained silent in his police interview because of advice given to him by his then legal adviser, a Mr Owens of Messrs Avery Naylor Wilson.

(2) His Article 6 rights may have been violated by a failure to adduce before the jury certain evidence which could have been given by Mr Owens, which would have supported the appellant’s contention that he remained silent on the basis of legal advice. However as we shall show the grounds of appeal advanced by counsel on the appellant’s behalf run wider than the concerns of the Commission.

[2]The outline facts were these. The appellant and the complainant, one Kevin Johns, were friends. They both lived in a house made up of bed-sitting rooms. The Crown’s case was that on 9 February 1998, while both of them were watching television in the lounge, the appellant without any provocation attacked Mr Johns with a knife and inflicted very serious injuries upon him. It was alleged that a knife with droplets of water upon it was later found in the appellant’s wardrobe, and that this was the knife used in the attack. Blood had been washed off it by the appellant. The defence case was that an incident had indeed taken place in the lounge that evening, but that the attacker had been the complainant Mr Johns; it was he who had assaulted the appellant with a knife. Any injuries sustained by Mr Johns had been caused by acts of reasonable self defence on the appellant’s part. It was suggested as part of the defence case that Mr Johns might have attacked the appellant in an attempt to rob him so as to get money to relieve some of Mr Johns’ debts. The appellant admitted that the knife found in the wardrobe belonged to him, but denied that it had been used in the attack. He had not washed it; he said that particles of glue had been mistaken for droplets of water. After the fight had ended Mr Johns raised the alarm by banging on the door of one of the other residents of the house, a Miss Richardson. He said to her “Jeff stabbed me with his knife”. A few minutes before Mr Johns knocked Miss Richardson had heard a bang and a shuffle coming from upstairs, which later she assumed had been the noise of the fight taking place. Her partner Mr Manley believed that the time gap was rather longer; he put it at about 20 minutes. The police attended. Mr Johns was taken to hospital. The appellant had left the house; two hours later he arrived at the casualty department at Singleton Hospital in Swansea. He was asked what he did during the two hours. He said “I just walked… thought what to do… I just did not know what to do”. While he was at the hospital he was seen by police making a telephone call, apparently trying to call his solicitor. The police went up to him. They found out who he was. Then arrested him at 11.50 pm. When he was cautioned he replied, “nothing at all at the moment until I see my solicitor”. He was told he was going to be searched in order to discover whether he was in possession of a knife, and he said “OK but I did not have any knife”.

[3]It is right to observe that Mr Johns’ injuries were much more severe than those sustained by the appellant. Mr Johns suffered an injury to the right abdominal wall below the ribs, which spurted blood on examination. The doctor was able to penetrate the wound with his finger by about 4 inches. A scan revealed that although the abdominal wall had been penetrated, no damage had been caused to the organs; the doctors thought that this was miraculous in the circumstances. The nature of the injury might have been occasioned by the force of a blow, or the effects of a struggle while the knife was actually in the wound. Considerable force would have been required to get the knife past the ribs. There was a second wound, by which the knife had penetrated Mr Johns’ chest cavity and caused the collapse of the lung. That was life-threatening. Further there were numerous lacerations to the hands and the head, and a gash over the eye. There were abrasions to various areas of the body, and a bite mark on each shoulder. An injury to the face appeared to be a slash wound. As for the appellant, he had sustained lacerations and swelling to the right eye and right index finger, both of which needed around 3 sutures. The eye injury could have been caused by a head butt; however it was more consistent with a punch. The doctor examining him thought that the finger injury had been caused by a sharp instrument, and not a bite.

[4]After he had been treated for his injuries, the appellant was taken to the police station where he asked to see a solicitor. On 10 February 1998 Mr Owens attended at the police station before the appellant was interviewed under caution. He took a detailed statement from the appellant, in which the appellant gave an account to the effect that Mr Johns was the attacker, with the knife, and he had done no more than defend himself. It is unnecessary to set out the detailed terms of this statement, but we must refer to it further in due course.

[5]Then on the same day the appellant was sought to be interviewed by the police. There is a pro forma document which under the heading “record of agreed course in interview”, has these words in Mr Owens’ writing:

“After receiving legal advice I have decided to make a no comment reply on the basis there is no written statement from the injured party.”

Then there follows the appellant’s signature. The appellant proceeded to give a no comment interview. On 7 April 1998 Mr Owens prepared a witness statement by way of explanation as to why Mr Howell was advised to give a “no comment interview” when he was seen by police officers at 1356 on 10 February 1998. He states that two police officers had given him “a detailed verbal account of what took place” (sc. in the incident in question). Then the statement includes this observation: “At no time during this did the officers refer to statements or pocket notebooks. I requested that I be shown a statement of complaint… The officers… informed me that the hospital stated the complainant… will not be able to make a statement for a couple of days… I referred the fact to the officers that they appeared to have got quite a detailed account from the complainant already… I conferred with Mr Howell where I discussed the problem with lack of disclosure from the officers. Mr Howell stated he was unsure as to whether the complainant would withdraw his complaint. I advised therefore that until we had full disclosure from the officers we would give a no comment interview. Mr Howell fully agreed…”.

[6]At his trial the appellant gave evidence in his own defence. As we have said his case was that Mr Johns was the attacker; and in his testimony he imputed a robbery motive to him. With the judge’s permission he was thereafter cross-examined about certain previous convictions of his, including matters recorded against him a very long time ago which were by then spent within the meaning of the Rehabilitation of Offenders Act 1974. One of these was a conviction in 1968 for an offence of wounding. We mention this because one of the complaints raised in the grounds of appeal is to the effect that the judge, while he possessed a discretion to let in these very old convictions because the appellant had attacked Mr Johns’ character, should in justice not have done so. We were not persuaded by this ground of appeal, nor by certain others which in truth are at the periphery of the case. We shall refer to all of these, which we may call the subsidiary grounds, briefly later in this judgment. More important is the course of Crown counsel’s cross-examination of the appellant relating to the no comment interview. First, we should indicate that in chief the appellant had said (transcript 29A):

“I was advised by Mr Andrew Owens not to make any no comment interview at all, because lack of disclosure…”. [Clearly he meant that he was advised to make no comment.] He added that he had followed this advice. Then in cross-examination Crown counsel took the appellant through every one of his “no comment” answers. We need only set out this following passage, close to the end of that part of his evidence (transcript 42H – 43C): “Q Why did you not answer that question, ‘Did you try and kill Kevin Johns?’ Why did you not answer that question? A I would have liked to have answered any of the questions, Sir, but I was advised not to by my solicitor, Mr Andrew Owens. Q That was advice. You knew that you were entitled to answer their questions if you wanted to do so, did you not? A Well, what was the point of me having a solicitor there, if I wasn’t going to actually take his advice? Q Because, and this is my final question about that interview, if you were an innocent man you would not have wanted your solicitor to advise you, you would have leapt at the chance to deny the allegations and to give your side of the story, if you were an innocent man. But you did not, did you? A I kept to what Mr Owens had told me, a ‘no comment’ interview. That’s why the gentleman was there representing me, sir. Q Yes, and of course – A But I wouldn’t have objected to any of them if I hadn’t had a solicitor.”

Q Yes, and of course –

[7]In re-examination the appellant was not asked to give any evidence of the statement he had made to Mr Owens on 10 February 1998, and the jury were at no stage apprised of the existence of that document. Mr Owens was not called as a defence witness to explain that he had indeed advised the appellant to offer no comment at interview, or why he had done so. These circumstances, together with the learned trial judge’s treatment of the no comment interview in the course of his summing-up, together form the principal basis upon which the appeal is put forward, consistently with the concerns expressed by the Commission. In that context it is appropriate at this stage to refer to a document in the handwriting (it would appear) of junior defence counsel, and signed by the appellant on 23 July 1998, which was the last day of evidence and indeed the day on which the appellant’s evidence before the jury was concluded. The document reads as follows: “I Jeffrey John Howell have carefully considered whether I want Andrew Owens called as a witness in my defence. I do not want him called. I fully realise that the court ie the prosecution and the judge in his summing-up will tell the jury that my ‘no replies’ can be held against me. Indeed Mr Rouch QC has actually read the terms of the direction out to me. But having considered the matter I remain of the view that I do not want him called. I fully realise the consequences of this decision.” “PR QC [leading defence counsel] had been present in con. but left before signed instructions taken”.

[8]The Commission recorded in its Statement of Reasons (paragraph 10.1) that junior trial counsel for the defence had indicated in a statement that the decision not to seek to adduce the 10 February 1998 in evidence, or to call Mr Owens as a defence witness, were decisions taken by the appellant himself. They state that junior counsel “said that the decision was taken following consultation with leading counsel and it was considered that any inconsistencies between the original statement and Mr Howell’s evidence in chief would have been elicited by Crown counsel in cross-examination of Mr Howell and used to undermine his case”.

[9]On 23 July 1998, after the end of the evidence, defence counsel submitted to the judge that s.34 of the Criminal Justice and Public Order Act 1994 (which we set out below) had no application to the case. The suggestion was that the police should not have interviewed the appellant at all, because the officer, PS Jones, believed before the interview started that he already had sufficient evidence to charge the appellant; and so under PACE Code C16.1 the appellant should have been brought without delay – and thus with no intervening interview – before the custody officer. The judge held that PS Jones was quite right to interview the appellant in this very serious case: he might for example have wished to raise an issue of self defence, or have other important things to say. Complaint is made in one of the subsidiary grounds of appeal that this submission to the judge should have been made earlier, before the appellant gave his evidence or upon a voir dire being held no doubt with PS Jones in the witness box. Had the submission been made then and succeeded, the appellant would not have been cross-examined about his interview at all. We can say at this stage that there is in our view nothing whatever in this point. The judge correctly held that it was the officers’ right and duty to interview the appellant. That being so, whenever this point had been taken, the appellant would in any event have been subjected to cross-examination about his interview. S.34 of the Act of 1994 is, however, very important for the resolution of the true issues in the case concerning the 10 February 1998 statement, Mr Owens’ advice, and the judge’s summing-up. It is convenient therefore to set out its terms so far as relevant:

“(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… being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned… subsection (2) below applies. (2) Where this subsection applies – … (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.”

S.35 of the Act of 1994 deals with the different case where inferences may be drawn against an accused by reason of his failure to testify at his trial. may draw such inferences from the failure as appear proper.”

[10]We turn to the summing-up. The relevant passage is at 14G – 16H of the transcript:

“Mr Howell in this court has relied on self-defence. He says that he was attacked by Mr Johns and that any injuries Mr Johns received were caused in the course of the struggle that followed when Mr Howell was doing no more than lawfully defending himself. He admits that he did not mention those highly relevant facts when he was interviewed. The prosecution case is that that in the circumstances of this case he could reasonably have been expected to mention those matters in his interview the afternoon after the event…. You must therefore decide whether in the circumstances these were matters which he could reasonably have been expected then to mention. If that is your decision the law is this, that you may draw such common sense conclusions as appear to you proper from his failure to mention those matters at the time he was interviewed. Failure to mention those matters cannot on its own prove guilt, but depending on the circumstances you may hold it against him when deciding whether he is guilty. You can 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 Mr Rouch invites you not to hold it against the defendant that he failed to mention these matters in his interview, and that is Mr Howell’s evidence that his solicitor advised him not to answer questions, and if you think that this 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 these facts was that he then had no innocent explanation to offer you may hold it against him, it is a matter for you. No reason, members of the jury, has been given as to why such advice was given. The solicitor has not given evidence, has not come before you to explain why he advised Mr Howell in the light of that caution which I have just read to you not to answer questions, and the law now on this matter is clear, and the caution or warning was fully explained to the defendant by the policeman. The prosecution say that in the light of that caution, and in the particular circumstances of this case, this was not a man charged with an offence (or arrested for an offence, rather) at which he was not present or relating to conduct over a long period of time or relating to documents which he may not have seen recently, this was a case where the defendant was present at the scene of the crime that was alleged, and allegedly the victim of a vicious attack by a man with a knife, and only as he now says, acting in self-defence. The prosecution say that in the light of all those circumstances it is unbelievable that the defendant should not have given his explanation to the police when he was questioned. You should consider whether or not he was able to decide for himself what he should do, or having got a solicitor to advise him he would not challenge that advice in the light of the specific warning in the caution. The defendant told you, ‘I asked a solicitor’s advice, he gave it, I accepted it. I would have told the police the full story if I hadn’t been advised to say nothing’. You may think, but it is entirely a matter for you, that in the circumstances of this case it is difficult to see how such advice could have been given, or if given, acted on. The prosecution asked ‘why should an innocent man, indeed a victim of crime, not say what happened when asked about it?’ The reason they claim is that he is not an innocent victim, but a man who has committed a grave crime. That is why he kept quiet they say, he had not yet thought up his defence. You will decide what you make of the arguments on both sides.”

[11]We now turn to the grounds of appeal (the grounds are all pre-fixed with the number 3, as they appear in the third section of a composite document put in by counsel for the appellant). We will deal first with what we have called the subsidiary grounds. We have already disposed (paragraph 9) of the argument that the submission to the effect that s.34 of the 1994 Act did not apply to the case should have been made at a different stage. That was Ground 3(ii)(a). We have also indicated (paragraph 6) that we are not persuaded by the submission (Ground 3(i)(c)) that the judge should have declined to allow the Crown to cross-examine the appellant on his previous convictions for offences which went back a long distance in time. The suggestion here (section 5 of counsel’s Grounds document, paragraph 5.7) is that the judge failed to apply the “proper test” – a reference to the exhortation to judges in the Practice Direction relating to spent convictions (61 CAR 260) not to let in such convictions unless it is in the interests of justice to do so. But the judge plainly thought that the interests of justice would be served by cross-examination of the appellant on these convictions. We cannot say he was wrong. This ground is linked to three others:(a) failure by the judge to warn defence counsel during the cross-examination of Mr Johns that questions put to him suggesting a robbery motive would likely result in the loss of the appellant’s shield against the admission of his previous convictions (Ground 3(i)(b)) – however Miss Dobbs QC for the appellant made it clear that she did not pursue this argument: she was plainly right to abandon it;

(b) error by defence counsel in putting the robbery motive at all (Ground 3(ii)(e)); and

(c) error by counsel in making reference, in the course of the appellant’s evidence in chief, to a pending drink-driving charge (Ground 3(ii)(g)). These remaining points are in our view wholly unsustainable. The alleged robbery motive was put to Mr Johns on the appellant’s express written instructions (in a note signed by himself and junior counsel and the solicitor for the defence), and he had obviously been given advice about it. The point about the drink-driving charge is frankly ephemeral. We should add that the argument that the judge should not have let in the appellant’s previous convictions was one of the grounds upon which the full court originally refused leave to appeal on 14 May 1999. Now, once a reference has been made to this court by the Commission, the appeal may be on any ground relating to the conviction whether or not the ground is related to any reason given by the Commission for making the reference (Criminal Appeal Act 1995 s.14(5)). But where such an ancillary ground is, as here, unrelated to the basis for the Commission’s reference and has already been dismissed by this court upon an earlier application for leave to appeal, it is very unlikely to receive other than short shrift at the later appeal consequent on the Commission’s reference.

[12]Ground 3(i)(a) is to the effect that the judge erred in allowing the Crown to withhold from the defence certain details of Mr Johns’ medical records. It is said that any information relating to Mr Johns’ physical or mental condition was relevant to the defence in various respects, not least as potentially offering an explanation why he might attack the appellant without the least provocation. In fact, a document in redacted form (which had been approved by the judge) was provided to the defence. We understand that no suggestion was made at the trial to the effect that it was inadequate. We see no reason why such a point should be taken now.

[13]Before coming to the substance of the case, there remains only Ground 3(ii)(f), which accuses trial counsel and solicitors of failing “to ensure that the [appellant] fully understood the ramifications of instructions said to have been given by him”, and failing to give him proper advice about the effect of any instructions he gave. But there is nothing whatever in the papers on which to build such an argument.

[14]That brings us, then, to the nub of the case, which concerns the no comment interview. There are three aspects to it. First, it is said that counsel should have called Mr Owens to give evidence to the effect that he had advised the appellant not to answer questions in interview, and why (Ground 3(ii)(b)). Secondly, counsel should during the appellant’s re-examination have adduced his statement given to Mr Owens on 10 February 1998 (Ground 3(ii)(d)). Then at Grounds 3(iii)(a) – (c) three linked complaints are made as to the passage in the summing-up which we have set out. Together they amount to this. The judge failed to make it clear to the jury that there was evidence before them, coming from the appellant, that he had remained silent at interview because he had been advised to do so by his solicitor, and the reason for the advice was that there had at the time been a failure of disclosure by the police; and the judge should have directed the jury that if they felt that he may have remained silent because he was acting on his solicitor’s advice, no adverse inference should be drawn against him. Instead, the judge gave a strongly worded, unbalanced and misleading direction which all but withdrew from the jury’s consideration the crucial explanation for the appellant’s silence, namely the solicitor’s advice. The critical passage is at 16E – H which we repeat for convenience:

“The defendant told you, ‘I asked a solicitor’s advice, he gave it, I accepted it. I would have told the police the full story if I hadn’t been advised to say nothing’. You may think, but it is entirely a matter for you, that in the circumstances of this case it is difficult to see how such advice could have been given, or if given, acted on. The prosecution asked ‘why should an innocent man, indeed a victim of crime, not say what happened when asked about it?’ The reason they claim is that he is not an innocent victim, but a man who has committed a grave crime. That is why he kept quiet they say, he had not yet thought up his defence.”

[15]The complaints against counsel and those against the judge are linked: Miss Dobbs would I think say that if Mr Owens’ evidence and the appellant’s previous statement had been before the jury, the judge would have been obliged to refer to those materials in terms as showing(a) that it was beyond question that the appellant had received professional advice to remain silent and there were solid reasons for it, and

(b) that it was also entirely plain he had not made up his story of self defence at some stage after the interview. And I think Miss Dobbs would add that in those circumstances there was really no scope for an adverse inference to be drawn from the appellant’s silence, and the judge should have indicated as much.

[16]We shall deal first with the complaints against counsel. In a letter to the Commission junior trial counsel indicates that the appellant’s signed instructions (see paragraph 7 above) to the effect that he did not want Mr Owens called were taken after his evidence had been completed, and following careful discussions in consultation with leading counsel. As it is put in the letter:

“Any differences of account, emphasis and detail whether by way of omission or addition between [the appellant’s] account at the police station [sc. to Mr Owens] and his evidence from the witness box could be particularly damaging to his case.”

Miss Dobbs says that any inconsistencies between the appellant’s testimony and the statement he gave to Mr Owens (which had formed the basis of his proof of evidence at trial) were minor at most. Mr Walters for the Crown was disinclined to accept as much. In any event, as we see the matter, the defence would not in fact have been entitled to adduce the earlier statement in evidence in the course of the appellant’s re-examination: it was a previous consistent statement which could not properly have been admitted save to rebut an allegation of recent fabrication. Neither in the passage we have cited above at paragraph 6, nor elsewhere in the Crown’s cross-examination of the appellant, was it suggested that his account in evidence was a late or recent invention. The point being put was, importantly, a different one. It was to the effect that he “would have leapt at the chance to deny the allegations and to give [his] side of the story, if [he] were an innocent man”. It is true that the judge characterised the Crown’s case in part as being that “he had not yet thought up his defence”, but that was not right (and we must separately consider whether that comment in the summing-up of itself affects the safety of the conviction).

[17]Given that the defence could not for their part have put in the statement of 10 February 1998, it remains to consider what might have been the effect of calling Mr Owens. He might of course have referred to the statement, but that would have been at the behest of questions from the Crown. Such questions would almost certainly have revealed the essential basis of his advice (whose privilege would manifestly have been waived) that his client should make no comment in interview. It appears from Mr Owens’ own statement of 7 April 1998, which we have already cited: “Mr Howell stated he was unsure as to whether the complainant would withdraw his complaint. I advised therefore that until we had full disclosure from the officers we would give a no comment interview. Mr Howell fully agreed…” (our emphasis). In our judgment it is by no means to be assumed that Mr Owens’ presence in the witness-box, with the proper opportunities that would have afforded the Crown to explore the basis of his advice to the appellant and the nature of the instructions he was getting on 10 February, would have told in the appellant’s favour. Nor would it necessarily have led the judge to fashion his summing-up on the issue of the appellant’s silence at interview into a shape which would be relatively – far less absolutely – favourable to the appellant.

[18]In the result we do not consider that the criticisms of counsel on this part of the case begin to assault the safety of the conviction. We turn to the criticisms of the summing-up.

[19]Here there are important issues of principle involved. Miss Dobbs has relied in particular on authority of the European Court of Human Rights and of this court to establish the proposition that where the reason for a suspect’s silence at interview is a genuine reliance on a lawyer’s advice that he should keep silent, that is at least a very powerful reason why the jury at the trial should draw no adverse inferences from his silence. It is convenient first to refer to the case of Condron, which was the subject both of an appeal in this court ([1997] 1 CAR 185) and an application to the European Court of Human Rights (Application no. 35718/97, [2000] Crim LR 679). The appellants and a co-accused were arrested for drugs offences. At the police station the appellants’ solicitor advised them not to answer questions: he considered that they were unfit to be interviewed because of their drug withdrawal symptoms (though the police doctor thought they were fit). Accordingly they gave no comment interviews. Their appeals against conviction were dismissed by this court (Stuart-Smith LJ, Mantell and Moses JJ), which held that the trial judge had been right to leave it open to the jury to draw an adverse inference from the appellants’ failure to answer questions, notwithstanding the solicitor’s advice. The Strasbourg court found a violation of

ECHR Article 6(1)

, holding that “the terms of the judge’s direction to the jury left them at liberty to draw an adverse inference even if they had been satisfied that the applicants remained silent for good reason on the advice of their solicitor. As a matter of fairness, the jury should have been directed that if they believed that the applicants’ silence during the police interview could not sensibly be attributed to their having no answer to the questions, or none that would stand up to cross-examination, they should not draw an adverse inference” (Criminal Law Review headnote).

[20]The judgment of the European Court of Human Rights in Condron contains, with respect, this important passage at paragraph 61:

“… provided appropriate safeguards were in place an accused’s silence in situations which clearly call for an explanation, could be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution against him… However, in the instant case the applicants put forward an explanation for their failure to mention during the police interview why certain items were exchanged between them and their co-accused… They 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.”

[21]Before setting out our reasoning and conclusions on this important part of the appeal we should collect the principal strands in two of the domestic cases on s.34, starting with this passage from the judgment in Argent [1997] 2 CAR 27, delivered by Lord Bingham CJ (as he then was) at 35G – 36B:

“… under section 34, the jury is not concerned with the correctness of the solicitor’s advice, nor with whether it complies with the Law Society’s guidelines, but with the reasonableness of the appellant’s conduct in all the circumstances which the jury have found to exist. One of those circumstances, and a very relevant one, is the advice given to a defendant. There is no reason to doubt that the advice given to the appellant is a matter for the jury to consider. But neither the Law Society by its guidance, nor the solicitor by his advice can preclude consideration by the jury of the issue which Parliament has left to the jury to determine.”

[22]Miss Dobbs draws particular attention to Betts & Hall [2001] 2 CAR 257, which she says builds on Condron, and so far as the authorities go represents, we think, the high water mark of her case. The critical passage in the judgment of the court delivered by Kay LJ is at paragraphs 53 – 54:

“In the light of the judgment in Condron v United Kingdom it is not the quality of the decision [sc. not to answer questions] 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 satisfactory, answer to give then no inference can be drawn. 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 lawyer’s advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts.”

[23]In seeking to articulate the true impact of s.34 upon cases like the appeal in hand, it is we think salutary to go back to the words of the section. It empowers the jury to draw proper inferences from a failure “to mention any fact relied on in his defence… being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention…” (emphasis added). It seems to us that this provision is one of several enacted in recent years which has served to counteract a culture, or belief, which had been long established in the practice of criminal cases, namely that in principle a defendant may without criticism withhold any disclosure of his defence until the trial. Now, the police interview and the trial are to be seen as part of a continuous process in which the suspect is engaged from the beginning. Of course he retains a right to silence, which the statute protects: not in absolute terms, but by providing, in the words we have emphasised, that adverse inferences may be drawn only in those cases where he could reasonably have been expected to mention the facts in question.

[24]This benign continuum from interview to trial, the public interest that inheres in reasonable disclosure by a suspected person of what he has to say when faced with a set of facts which accuse him, is thwarted if currency is given to the belief that if a suspect remains silent on legal advice he may systematically avoid adverse comment at his trial. And it may encourage solicitors to advise silence for other than good objective reasons. We do not consider, pace the reasoning in Betts & Hall, that once it is shown that the advice (of whatever quality) has genuinely been relied on as the reason for the suspect’s remaining silent, adverse comment is thereby disallowed. The premise of such a position is that in such circumstances it is in principle not reasonable to expect the suspect to mention the facts in question. We do not believe that is so. What is reasonable depends on all the circumstances. We venture to say, recalling the circumstances of this present case, that we do not consider the absence of a written statement from the complainant to be good reason for silence (if adequate oral disclosure of the complaint has been given), and it does not become good reason merely because a solicitor has so advised. Nor is the possibility that the complainant may not pursue his complaint good reason, nor a belief by the solicitor that the suspect will be charged in any event whatever he says. The kind of circumstance which may most likely justify silence will be such matters as the suspect’s condition (ill-health, in particular mental disability; confusion; intoxication; shock, and so forth – of course we are not laying down an authoritative list), or his inability genuinely to recollect events without reference to documents which are not to hand, or communication with other persons who may be able to assist his recollection. There must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police. Solicitors bearing the important responsibility of giving advice to suspects at police stations must always have that in mind.

[25]We should say that we consider this approach to be perfectly consistent with Condron on a proper reading of the Strasbourg judgment. The holding in that case referred to the applicants remaining silent for good reason on the advice of their solicitor. Moreover since the hearing we have seen the recent decision of the European Court of Human Rights in Beckles v UK

[2002] ECHR 44652

/98, another case in which the applicant remained silent on his solicitor’s advice. At paragraphs 58 – 59, after referring to Condron, the court said this:

“58… it is obvious that the right [sc. to silence] cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution… 59 For the Court, whether the drawing of adverse inferences from an accused’s silence infringes art 6 is a matter to be determined in the light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation… Of particular relevance are the terms of the trial judge’s direction to the jury on the issue of adverse inferences.”

[26]Adopting the approach we have outlined to the present case, we do not consider that the terms of the judge’s direction to the jury begin to render this conviction unsafe. There was here no soundly based objective reason for silence. The jury were perfectly entitled to draw adverse inferences from the appellant’s no comment interview. It is true that the judge should not have spoken in terms which suggested the possibility of recent fabrication (transcript 16G). But on all the facts that cannot on its own suffice to assault the safety of the conviction.

[27]The appeal against conviction will be dismissed.