Hoare & Anor, R v [2004] EWCA Crim 784

Case Nos: 2003/02271-C3; 2003/02499-C3

[2004] EWCA Crim 784

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT LEWES

HIS HONOUR JUDGE ANTHONY

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

Date 02 April 2004

Before

LORD JUSTICE AULD

MR JUSTICE FORBES

HIS HONOUR JUDGE TILLING

Between

REGINARespondent

KEVIN HOAREAppellants

GRAHAM PIERCEAppellant

Miss Christine Laing (instructed by CPS Sussex) for Prosecution

Michael Oliver (instructed by Kaim Todner) for appellant, Hoare

Christopher Bertham (instructed by Amphlett Lissimore) for appellant, Pierce

Hearing Hearing date : 10 th March 2004

JUDGMENT

[1]On 10th March 2004 this Court dismissed the appeals of Kevin Hoare and Graham Pierce against their convictions and sentences on 19th March 2003 before His Honour Judge Anthony and a jury in the Crown Court at Lewes, in the case of Hoare, of producing a class B drug, amphetamine, and in the case of Hoare and Pierce, of conspiring together to supply such a drug. The Court now gives its reasons for dismissing those appeals.

[2]The Judge sentenced Hoare to a total of 12 years imprisonment, made up of concurrent sentences of 12 and 10 years, for the production offence and the conspiracy to supply respectively, and Pierce to 10 years for the conspiracy to supply.

[3]Both men appealed against conviction by leave of the single Judge, and both renewed their applications for leave to appeal against sentence following refusals by the single Judge. On 10th March 2004 the Court refused those applications and gave its reasons for doing so. The facts

[4]The case concerned the large-scale manufacture of amphetamine sulphate by Hoare over a four year period from 1998 to 2002 and the supply of it by Hoare and Pierce over a two year period from 2000 to 2002.

[5]The prosecution case and evidence on the production offence alleged against Hoare were, in summary, as follows. He lived in a large and secluded farm – part of which was a former oast house – in Hurst Green in Sussex. He controlled a company called Dixon Scientific Wilkinson Ltd. in Beckenham in Kent. The company manufactured glass-ware and other equipment for scientific and technical use, and also bought chemicals for selling on to others. Over the four years covered by the production charge, he purchased vast quantities of various chemicals allegedly for use in that business. The prosecution case was that he and others, not including Pierce, used a makeshift laboratory in a barn at the farm to produce amphetamine sulphate from the chemicals that he had bought ostensibly for his company. We should interpolate that those others were jointly charged with Hoare for their knowing involvement in the production of the amphetamine and prosecuted in the same trial, but were acquitted of any such involvement.

[6]The amount of chemicals found by the police in the barn after the arrest of Hoare and Pierce in July 2002 was sufficient to produce about 33 kilograms of high grade amphetamine sulphate, which, cut to typical street purity of between 5 and 10%, would have produced between 330 to 660 kilograms for sale on the street. The police also found there over 800 grams of pure amphetamine. There was also evidence that, over the four year production period charged, the chemicals purchased by Hoare and delivered to the barn indicated a yield of about 300 kilograms of high grade amphetamine sulphate, which, when cut to street level purity, would have produced between 2 and 6 tonnes of amphetamine. At street level prices, such a vast quantity would have produced over the period a figure of up to £20m.

[7]For six weeks from the end of May 2002 to the arrests of Hoare and Pierce on 18th July officers of the National Crime Squad kept them and the others involved in the operation in the barn under close surveillance. It was clear from that surveillance that Hoare was involved in the manufacture of some substance in the barn, using the chemicals he was purchasing ostensibly for the legitimate purposes of his company. One of his major suppliers of chemicals was a firm called R & L Slaughter in Upminster, Essex. There was also evidence of a good deal of coming and going by Pierce, indicating his close involvement with Hoare in the distribution of the finished product and of deliveries by Hoare of boxes to Pierce’s home in Streatham.

[8]The whole dishonest venture came to an end on 18th July 2002 when the watching officers saw Hoare drive in a van to Pierce’s house in Streatham, where Pierce greeted him. Hoare took a box from the van, and followed Pierce into the house with it. Within a minute or so the two men returned to the van, this time with some empty boxes, which Hoare put in the van. Hoare then drove off, followed by some of the watching officers.

[9]Some officers remained behind for the purpose of executing a search warrant at Pierce’s house, which they did very shortly after Hoare had left. They found the box that Hoare had just brought, and in it enough amphetamine, when cut to street purity, to yield between 10 and 21 kilograms, with a potential street value of between £65,000 and £200,000. On arrest, or just before arrest, Pierce said to them that it was obvious from their arrival five minutes after the box had been delivered that it was "a fit-up". (Pierce was to say in evidence at trial that he wrongly jumped to the conclusion at the time that Hoare must have been working for the police.) Subsequently, the police found traces of amphetamine in Pierce’s car.

[10]In the meantime the other officers had stopped Hoare as he was driving along Streatham High Street and had arrested and cautioned him. They took him to Streatham police station. On arrival there, they found the four empty boxes in the van, which when later examined, showed traces of amphetamine. At the police station Hoare volunteered to one of the officers: . "As you go towards the house, the oast is on the right and there is an agricultural barn straight ahead. Everything you want is in there …, the boys [a reference to his sons] don’t know anything. If it’s locked the key is under a large rock. "

[11]Later that day the police took both men back to Sussex, and, on the following day at Eastbourne police station, officers interviewed, or attempted to interview, each of them under caution and in the presence of a solicitor. In the case of Hoare, his solicitor said at the start of the interview that, as it was not clear what evidence the police had to suggest he had committed an offence, the caution they had administered to him might mislead. He implied that he had advised him not to answer any questions. In the case of Pierce, his solicitor said at the start of the interview that he considered too long a period had elapsed following Pierce’s arrest without charge. He maintained that Pierce’s continued detention and the proposed interview were, therefore, unlawful, and he had therefore advised him not answer any questions. Each appellant declined to answer any question, save that Pierce said he did not know what had been in the box that Hoare had delivered to him just before his arrest, and he believed he was being held unlawfully because he had been detained too long without charge. The trial

[12]The main issue at trial was, not so much what the two appellants had been observed doing, but whether they knew or believed that the end product of the manufacture was amphetamine or, as Hoare was to maintain for the first time at trial, a chemical for use in cancer research.

[13]At trial, in addition to the considerable evidence of police observations of the activities of Hoare in connection with the ordering of chemicals and the production of the drug and of Hoare and Pierce in its supply, the prosecution sought to put evidence before the jury of the no-comment interviews. Mr Christopher Bertham, counsel for Pierce, objected to the jury hearing evidence of his interview on the point taken by his solicitor at the beginning of it, namely that he was being unlawfully detained. The basis of the objection was that, as a result of that unlawful detention, Pierce was induced to say "no comment" in response to each question partly, if not wholly, because of his solicitor’s advice, and that since a "no comment" interview was capable of being a confession within the provisions of the Police and Criminal Evidence Act 1984, it was inadmissible because it had been induced by his unlawful detention. The Judge rejected that submission on the ground that the detention was not unlawful and that, therefore, the factual basis for the objection had not been made out.

[14]Prosecuting counsel, Miss Christine Laing, then put the evidence of both appellants’ interviews before the jury, doing so in summary form, in accordance with the guidance of Stuart-Smith LJ, giving the judgment of this Court in R v. Condron & Condron

[1997] 1 Cr App R 185

, at 195F-196B in relation to drawing any adverse inference from silence under section 34 of the Criminal Justice and Public Order Act 1994. Neither Mr Michael Oliver, on behalf of Hoare, nor Mr Bertham objected to that course and neither in cross-examination of the interviewing officer asked him to give any more detail of the questions or queried the relevance of any of them so as to suggest that they had not been directed to discovering whether or by whom the offences under investigation had been committed, and were, on that account, not such as to prompt an explanation at that stage under the provisions of section 34(1).

[15]As the nature and form of this evidence is central to determination of the first ground of appeal, we should indicate what it amounted to. Dealing first with the interviews of Hoare, Miss Laing asked the officer if he and his fellow interviewing officer had asked him questions about his visit to Pierce’s address on the previous day and about his visits to the premises of, and purchases of chemicals from, R & L Slaughter in Essex, about other police observations of his activities and of matters at the barn. The officer gave an affirmative answer. As to the interviews of Pierce, Miss Laing asked the officer if he and his fellow interviewing officer had put questions to him "about the matter for which he had been arrested", about "his involvement in the matters in a similar vein to Mr Hoare and about a video of the observation of Hoare’s visit to his house on the previous day. The officer again answered in the affirmative. She also asked the officer about the following question by his fellow officer to Pierce, "Is there anything you want to say in respect of the fact that I was putting to you about the amphetamine being in a box in your house?" The officer said that Pierce, after first replying "no comment", added "apart from that I did not know what was in the box, apart from that I believe I’m being held unlawfully because of the time factor and I’m going to make no comment … from now on".

[16]Both Hoare and Pierce gave evidence. They maintained that they did not, in their respective roles in this whole story, know that amphetamine had been involved. Hoare said that he had believed the substance produced and supplied was a compound for testing on animals with a view to its development as a cure for cancer. More particularly, Hoare said that he had been duped by three men whom, out of fear for his safety, he refused to identify other than as A, B and C. He said that he had let the barn to A for use as a manufacturing laboratory and that B and C had assisted A in that use. He also said that he, Hoare, had also assisted A in various of the processes there from time to time, but without knowing that the end product was an illegal drug. He said that he had known A for a number of years and had had regular business dealings with him, involving sales of glass-ware and chemicals. We should mention here that it was common ground at the trial that those three men existed and that they may well have had some involvement during some part of the period covered by the production charge with the activities at the farm and in the barn. As to the box containing amphetamine that Hoare had delivered to Pierce on the day of and shortly before their arrests, Hoare said that he had not known what was in it.

[17]Pierce, in his turn, said that he knew nothing about the production of amphetamine. He maintained that the only delivery he had ever taken from Hoare was the box, containing what turned out to amphetamine, delivered on the day of their arrests. He said that he had not known its contents, but had thought that it probably contained glass-ware, which he had agreed to deliver as a favour for Hoare.

[18]Each of the appellants said that he had remained silent in interview on the advice of his solicitor and Pierce called his solicitor, who confirmed, without challenge, that he had given such advice and why. Hoare said that he had followed that advice and had made no comment, as somebody who had never been arrested or interviewed before. Pierce said that his legal representative had told him that he was being unlawfully detained at the time, that hence his interview was unlawful and that he should not answer questions. He said that, but for that advice, he would have been more forthcoming and would have answered the questions.

[19]Miss Laing, in cross-examination of each appellant, asked more than once why he had not given the interviewing officers the innocent explanation of his involvement with the drugs that he had just given in evidence. Hoare’s response was that he could have given his explanation at the time, but that he had been stunned and surprised, he had not had much sleep and most people would act on the advice of their lawyer. As to Pierce, he replied that he had always said that he did not know that drugs were involved, and he repeated that he had been advised by his solicitor to say nothing.

[20]Before the Judge summed up the case to the jury, Mr Oliver and Mr Bertham invited the Judge to direct the jury not to draw an adverse inference against either appellant on account of his silence in interview when considered alongside his evidence. They submitted, following the words in section 34(1), that no evidence had been given that either of them:

" …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 …., being a fact which in the circumstances existing at the time … [he] could reasonably have been expected to mention when questioned …"

[21]Mr Oliver and Mr Bertham submitted that the prosecution had failed to establish in evidence that the questions asked by the officers in interview had been directed to trying to discover whether and by whom the offence in question had been committed, the fourth of the six conditions created by section 34 for its operation, as identified by this Court in R v. Argent

(1997) 2 Cr App R 27

, at 32E-F. Their point was that, as Miss Laing had only adduced in evidence a summary, not the full detail, of the questions in interview, there was no evidence before the jury upon which they could conclude that it was reasonable to expect either of the appellants to give the explanations in interview that he was later to give in evidence.

[22]The Judge rejected those submissions. He held that, in the short summaries of the interviews Miss Laing had put before the jury, the prosecution had laid a sufficient evidential basis for a direction to them to consider drawing a section 34 inference and that he would give such a direction. Having summarised the evidence in question (which we have outlined in paragraph 15 above), he said:

"So evidence was adduced, and is before the jury, that questions relating, in the case of Hoare, to what had happened on the day of the arrest, including the visit to Pierce’s address, about purchasing chemicals, about observations and about matters at the barn, that questions were asked about all of those and not answered. And that questions in a similar vein, about Pierce’s involvement, were asked and that he failed to answer those. Is the fourth condition, namely that the questioning has to be directed to trying to discover whether or by whom the offence had been committed, satisfied? In my judgment it clearly is. There is, even in the most general way, evidence before the jury that questions were asked about what had happened on the 18th July, the visit of Kevin Hoare to Graham Pierce’s address; and, in the case of Kevin Hoare, about his purchase of chemicals, observations of him and matters at the barn, where of course the laboratory was found. And in the case of Graham Pierce, ‘questions in similar vein’ will relate to the visit to his premises by Kevin Hoare and, indeed, questions of observations would also be in that category, falling under the words ‘in similar vein’. It does not seem to me that, sensibly it can be suggested that the questioning, on the evidence before the jury, was other than directed at trying to discover whether or by whom the offence has been committed."

[23]In due course, the Judge directed the jury that it was open to them if they considered it right to do so, to draw an adverse inference against either of the appellants from his silence in interview. We shall return to the detail of that direction in our consideration of the second ground of appeal. Grounds of appeal

[24]Each of the appellants relies on the following grounds of appeal: 1) The Judge should not have invited the jury to consider drawing an adverse inference arising out their silence in interview, because there was no sufficient evidence, as required by section 34(1), of questions put to them in interview to enable a jury to consider whether they had failed to mention facts that they could reasonably have been expected to mention. 2) The Judge, in directing the jury to consider whether to draw such an adverse inference notwithstanding the advice of their solicitors, wrongly directed them that they could not do so if they, the jury, considered the appellants could "reasonably" (as contrasted with genuinely) have been expected to rely, for the purpose, on the advice of their solicitors. Pierce also had two related complaints under this ground: first that the Judge wrongly told the jury that, he had ruled in their absence that his solicitor’s reliance on his view that he was being unlawfully detained as a reason for advising him to keep silent was wrong in law; and second, that notwithstanding the plausibility of his explanation that he would have been more forthcoming but for that advice, the Judge wrongly told the jury that, they could draw an adverse inference against him. 3) The appellants did not receive a fair trial because the prosecution failed to disclose before or at the trial information that a forensic scientist and his assistant who investigated and gave evidence about the drugs factory at the farm had only ever seen such a method of production on one previous occasion, in which A and C had been concerned. Their complaint was that if the jury had known this, they might have accepted Hoare’s evidence that he had been duped by those men and, in consequence, also Pierce’s evidence that he knew nothing of the drugs. Sufficiency of evidence of interview questions for a section 34 direction

[25]Mr Oliver and Mr Bertham submitted that the prosecution, through Miss Laing’s summary questioning of one of the interviewing officers, did not evidentially prepare the ground for the Judge to give a section 34 direction because she had not adduced any evidence of the precise questions that the appellants had declined to answer. In doing so they relied on the guidance of Stuart-Smith LJ, giving the judgment of this Court in R v. Condron & Condron at 195F-196C, to which we have already briefly referred, namely:

"… We would wish to make it plain that no hard and fast procedure should be laid down; each case will depend upon its own particular facts. …In the ordinary way … it would seem appropriate for prosecuting counsel to adduce evidence limited to the fact that after the appropriate caution the accused did not answer questions or made no comment. Unless the relevance of a particular point has been revealed in cross-examination, it would not seem appropriate to spend time at this stage going through the questions asked at interview. If and when the accused gives evidence and mentions facts which, in the view of prosecuting counsel, he can reasonably have been expected to mention in interview, he can be asked why he did not mention them. The accused’s attention will no doubt be drawn to any relevant and pertinent questions asked at interview. The accused’s explanation for his failure can then be tested in cross-examination. It will not generally be necessary to call evidence in rebuttal, unless there is a dispute as to the relevant contents of the interview."

[26]Mr Bertham made more of this complaint than did Mr Oliver. He submitted that the jury had no evidence on which they could conclude, in the words of section 34(1), that the appellants had failed to mention "any fact" relied on in their defence "which in the circumstances … at the time … [they] could reasonably have been expected to mention when … questioned"

[27]In addition, Mr Bertham submitted that even if, contrary to his submission, Miss Laing, in adducing the interview evidence in summary form, had followed the first part of Stuart-Smith LJ’s guidance, she had not followed all of it. He maintained that, having heard the explanation of the appellants in their evidence in chief, Miss Laing should have cross-examined Pierce so as to contrast those explanations with his failure to answer specific questions in interview, thus giving him an opportunity to say why he had not given such an explanation at the time.

[28]Mr Bertham also complained that Miss Laing did not specifically challenge in her cross-examination of Pierce, his evidence in chief that he would have been more forthcoming but for the advice of his solicitor. Her failure to do so, he said, rendered his trial unfair because it deprived him of the opportunity to show that his evidence could survive a vigorous challenge.

[29]Mr Oliver accepted, on behalf of Hoare, that Miss Laing had put evidence before the jury showing that the questioning had been directed to trying to discover whether or by whom the offences had been committed. But, he said, the officers’ questions were not put sufficiently specifically before the jury to enable them to decide whether he was acting reasonably in declining to answer the questions.

[30]Miss Laing prefaced her response to those criticisms by the important point that section 34 is concerned with failure to mention facts rather than simply to answer questions. She said that, as contemplated by Stuart-Smith LJ’s guidance in Condron & Condron, it would have been pointless, and a waste of time to take the jury through each and every question in an interview when he had declined to answer any of them. She added that it would have been especially pointless since the appellants’ evidence was that they would have given the explanation in interview that they eventually gave at trial, but chose not to do so because their solicitors had advised them to remain silent.

[31]Miss Laing submitted that her broad approach to the interview evidence was appropriate in a case like this where, given the circumstances of their arrests, it would have been obvious to the appellants why the officers were questioning them and what they wanted to know. It is not a case in which their failure to answer specific questions required closer examination, for example, if they had they answered certain questions, but had declined to answer others, or where the prosecution case had significantly changed from the way in which the officers put it interview. With the one exception to which we have referred in the case of Pierce, they answered none of the questions and there was no change in the way in which the case was put.

[32]As to Mr Bertham’s complaint that Miss Laing did not take the course indicated in the second part of Stuart-Smith LJ’s guidance, of cross-examining the appellants on the detail of certain questions to which they remained silent in contrast to their evidence at trial, she had two answers. First, the guidance does not oblige prosecuting counsel to challenge an accused by cross-examining him - unanswered question by unanswered question – as to why he did not answer it by giving the account that he has given at trial; that would be as arid an exercise as adducing the entire evidence from the interviewing officers in chief. And second, she maintained that she did in fact cross-examine each of them about his failure, irrespective of the advice of his solicitor, to give in interview the account that he gave at trial. She said that, in addition to asking them in relation to parts of their evidence why they had not given that explanation in interview, she put to them that they had not answered the officers’ questions because they had wanted to think up their story and tailor it to fit the prosecution evidence as it emerged. That she did so, is plainly supported by the notes of her and Mr Pierce’s respective juniors’ of her cross-examination of both appellants. In the event, as we shall indicate, the extent to which Miss Laing pressed this point in her cross-examination of either appellant is, in the circumstances of this case, of marginal relevance to the outcome of this ground of appeal.

[33]In our view, there is no substance in this ground of appeal in the case of either appellant. The essential question for the Court is whether the jury, on the evidence before them, were aware of the relevance of the officers’ questions in interview to the offences under investigation. In the circumstances of the case, even before any questions were put to them, it could not have been plainer to them why they had been brought to the police station for questioning, namely the delivery by Hoare of a box to Pierce containing something that was clearly of great interest and concern to the police. Pierce’s unsolicited comment to the officers at his house and Hoare’s volunteered information to other officers at Streatham police station plainly indicated that each knew what the officers were interested in and what, if they were willing, they would be invited to explain. The Judge’s observations, when he came to sum up to the jury, make the point:

"As part of his defence, Kevin Hoare has relied upon what he says are the facts: that he did not know that what he was helping to produce in his barn was a controlled drug, but that he had been led to believe, by people he prefers to identify as "

A", "B" and "C", that what was being produced was a compound for use in research into a cure for leukaemia, or other diseases, and that there was something of a need for secrecy because the compound would be tested on animals and so there was a risk of Animal Right’ protesters presumably attacking either those involved, or the premises involved, or at least making a nuisance of themselves if they were to find out. He also relies on what he says was the fact: that he did not supply any drugs to Graham Pierce, save on the day of his arrest, and he says that he did not know, believe or suspect, that the contents of the box were a controlled drug, but rather he thought that they were packets of the anti-cancer compound. And he also relies on what he says is the fact: that his relationship with Graham Pierce was connected to proposed inventions by Graham Pierce and that is why there were visits by Graham Pierce to Beckenham or by him to Pierce’s house. Graham Pierce relies on what he says are the facts: that his relationship with Kevin Hoare was due to trying to arrange for the manufacture and then marketing of his inventions. That the other boxes found in his house were borrowed by him, or had in one case contained a glass figurine that he was given. That amphetamine traces found in his car must have been contamination from him being in Kevin Hoare’s van. And that the reason for him having the box delivered to him by Kevin Hoare on the day of the arrest was that he was going to deliver it onwards as a favour. Both of them did, of course, fail to mention those facts when interviewed about the offence and that failure may count against them."

[34]We have indicated, in paragraph 15 of this judgment, the content of the summary of the interview evidence that Miss Laing put before the jury in which they failed to mention those facts. In our view, the Judge’s decision that, in so doing, she had laid the ground for him to give a section 34 direction cannot be faulted. On such evidence of the interviews, no reasonable jury could have been in any doubt that the interviewing officers had questioned them, not only as required by section 34(1) in such a way as to make plain that they were trying to discover whether and by whom the offences in question had been committed, but also that they were doing so in a pointed way by reference to activities of the appellants of which they were aware.

[35]The facts of this case are far removed from the possibilities considered by this Court in R v. Roble [1997] Crim L R 449, CA, for example, that the interviewing officer has disclosed little or nothing of the nature of the case against the defendant so that the solicitor cannot usefully advise his client, or where the nature of the offence or of the material in the hands of the police is so complex, or relates to matters so long ago that no sensible immediate response is feasible. Here, put at its simplest, if these appellants honestly believed that the officers had mistaken their involvement in a life saving undertaking for the cure of cancer for some dishonest enterprise, the summarised questions posed were the obvious prompt for them say so. The evidence, in the summary form in which it had been placed before the jury, accorded with the guidance of Stuart-Smith LJ in Condron & Condron as to how the prosecution should deal with a "no comment" interview and as to how and when the defence should make any submissions to its admissibility and/or as to the drawing of adverse inferences.

[36]In our view, also there is no substance in Mr Bertham’s additional suggestion that Miss Laing had unfairly failed to cross-examine Pierce, or to cross-examine him in sufficient detail, about the officers’ questions so as to give him an opportunity to explain his silence at the time. First, as we have shown, Miss Laing did cross-examine each of the appellants by reference to the substance of the questions to which they had remained silent, and each had had an opportunity to, and did, respond to her questions. Second, Mr Bertham’s submission, even if there were some factual basis for it, is unsound as a general proposition - to which he seems to have elevated the remarks of Stuart-Smith LJ in the second paragraph of the passage from his judgment in Condron & Condron that we have set out in paragraph 25 above. Stuart-Smith LJ made plain in his opening remarks to the passage as a whole that he was not prescribing any hard and fast procedure, and emphasised that each case would depend on its own particular facts. In a case where, as here, the evidence before the jury shows a plain and stark contrast between the essentials of the prosecution case as explored first in interview and the defendant’s explanation by way of answer to them at trial, it is not necessary to the fairness of the trial that prosecuting counsel should in cross-examination invite the defendant, interview-question by question, to explain why he remained silent. And Stuart-Smith LJ, in those observations, clearly did not intend that. His reference to prosecuting counsel’s ability to draw his attention to "any relevant and pertinent questions at interview" was a reflection of what prosecuting counsel would normally want to do anyway – highlight and contrast by reference to the points of importance in the prosecution case put by the officers in interview, to which the defendant remained silent at the time, with his account at trial. That is just what Miss Laing did in this case; she had no obligation to do more.

[37]Accordingly, we reject this ground of appeal. The propriety of the Judge’s section 34 direction

[38]The issue raised by this ground is whether, when a defendant has remained silent in a police interview on the advice of his solicitor, the test for a jury when deciding whether to draw an adverse inference from his silence is subjective or objective, that is whether it is sufficient to preclude an adverse inference that he genuinely relied on it as a reason for silence or whether it is only so if, in the circumstances at the time, he could reasonably have relied on it as a reason for silence. The issue is prompted by what Mr Oliver and Mr Bertham suggested, are two conflicting lines of decisions of this Court as to the requisite state of mind of a defendant relying, as one of "the circumstances existing at the time", on his solicitor’s advice to remain silent and its relationship to the section 34 test whether he has failed to mention facts that he "could reasonably have been expected to mention when …questioned". Is it sufficient for a jury, in order to draw an adverse inference, to conclude that, notwithstanding such advice and his "genuine" reliance on it, it would still have been reasonable for him to have mentioned such facts at the time, in accordance with the reasoning of this Court in R v. Howell [2003] Crim L R 405 and R v. Knight, The Times, August 20, 2003? Or can they only do so where they are satisfied that he did not, in the light of that advice, "genuinely" rely on it, as Mr Oliver and Mr Bertham maintained is the reasoning in R v. Betts & Hall [2001] Archbold News 3 and R v. Robinson

[2003] EWCA 2219

[39]Before going any further, we should say something about, and set out, the Judge’s direction to the jury, which was that the test of reasonableness applies to an accused’s response to his solicitor’s advice to remain silent as well as to the broader question of which it is part, whether to remain silent. In giving his direction, he followed the scheme and form of the latest Judicial Studies Board specimen direction set out in paragraph 15-427 of the current edition of Archbold, including paragraph 5 of it. That states that a solicitor’s advice to remain silent is an important consideration but does not automatically exclude an adverse inference from silence, since an accused given such advice has the choice whether to accept or reject it and is warned in the caution that any failure to mention any facts that he relied on at trial might harm his defence. The Judge then turned, as the notes in the specimen direction advise, to the particular circumstances of the advice and the appellants’ response to it. We have italicised the passages in the following part of his direction to which Mr Oliver and Mr Bertham took objection: . "…if you accept the evidence that the defendant whose case you are considering was advised to make no comment, this is obviously an important consideration but it does not automatically prevent you from drawing any conclusion from his silence. Bear in mind that a person given legal advice has the choice whether to accept or reject it, as indeed did happen in the one instance of Pierce that I have … reminded you of. Bear in mind that the defendant was warned, in the caution, that any failure to mention facts which he relied on at trial might harm his defence. Take into account, also the reasons given by the solicitors in question and decide what you make of the them. You have not heard why it was that Kevin Hoare’s solicitor considered that it was unclear what evidence the police had to indicate that any offence had been committed, nor why he thought the caution might mislead; and, so, you will have consider your view as to the adequacy of such reason without the benefit of it being explained to you. You do, on the other hand, know why Graham Pierce’s solicitor considered the detention and interview to be unlawful, namely, that over 24 hours had elapsed since the arrest. In fact, one of the questions of law that I had to decide revolved around that, and I have decided – the precise reasons for which I need not bother you with, but which involved consideration of the words of the statute that cover how long an arrested person can be detained …. But nonetheless, that was expressed to be the belief of the solicitor, and it was not suggested to him, when he told you about that, that he did not genuinely hold that belief. So, having considered all of the circumstances, you have to decide whether the defendant in question could reasonably have been expected to mention the facts on which he now relies. If, for example, you come to the conclusion that that defendant had, or may have had, an answer to give, but reasonably relied on the legal advice to remain silent, you should not draw any conclusion against him from his failure to do so. If, on the other hand, you were satisfied that the defendant had no answer and merely latched on to the legal advice as a convenient shield behind which to hide, then you would be entitled to draw a conclusion against him, subject to the direction I have given you. When you are considering whether it was reasonable for the defendant in question to rely on the advice, and whether he actually did so, or whether he simply latched on to it as convenient excuse, you are entitled to look at the explanation for the advice and whether that was a reasonable ground for advising the client not to answer."

[40]Mr Oliver and Mr Bertham accepted that the Judge in that direction correctly used the word "reasonably" in rehearsing the statutory test in section 34(1) whether the appellants "could reasonably have been expected to mention" when questioned in interview facts that they relied on at trial. However, they objected to his use of it in the more particular question whether it was "reasonable" in the circumstances for them to rely on their solicitors’ advice to remain silent. They suggested that the test in that context was subjective, not objective, not whether the appellants reasonably relied on the advice, but whether they genuinely did so.

[41]Mr Oliver and Mr Bertham maintained that the Judge, in directing the jury as he did, had wrongly taken the Howell and Knight objectiveway when he should have followed the Betts & Hall and Robinson subjective way. Miss Laing’s response was that there is no such conflict between the authorities as to the principle to be applied, which is as to the reasonableness, not just the genuineness, of an accused’s reliance on legal advice. She maintained that the Judge’s direction accorded with a single line of authority to that effect.

[42]The starting point in looking at the authorities is the decision of this Court in Condron & Condron at 191, that legal advice cannot "by itself" prevent an adverse inference being drawn, though it is "a very relevant" circumstance to take into account in deciding whether the defendant could reasonably have been expected to mention the fact relied on at the time. In. Argent Lord Bingham CJ, as he then was, giving the judgment of the Court, said that it is not the correctness of the advice that matters, but the reasonableness of the defendant’s silence in all the circumstances, including that advice. He said, 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 has 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 the jury to determine."

[43]The European Court of Human Rights in Condron v. United Kingdom

(2001) 31 EHRR 1

, said, at paragraph 60, that the fact that an accused has been advised by his lawyer to remain silent must be given "appropriate weight" because "[t]here may be a good reason for such advice"; in that case the reason suggested was the unfitness of the accused to cope with police questioning. However, the Court went on, at paragraph 61, to make plain that it would not be a good reason for an accused’s silence that he had no answer or none that would stand up to cross-examination. That ruling is consistent with this Court’s proposition in Condron & Condron, but is not illuminating on the relationship between sound legal advice for tactical reasons to say nothing, on which an accused relies when deciding to remain silent, and another and perhaps more powerful reason for doing so that he has no innocent explanation to give or none that would withstand examination.

[44]Equally unilluminating on this point are the observations of the Court in Averill v. United Kingdom

(2001) 31 EHRR 36

, at para. 47, that a reason for not drawing an adverse inference may be that such advice is bona fide. The Court stopped short of considering the effect of such bona fide advice on what a defendant can reasonably be expected to mention in his own defence when he has other reasons for silence which may be consistent only with his guilt of the matters under investigation. There is no difficulty where such other matters may be consistent with his innocence, such as those considered as possibilities in Roble, or those in the following passage from Lord Bingham CJ’s judgment in Argent, at 33E-F:

"Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as that he was tired, ill, frightened, drunk, drugged, unable to understand what was going on, suspicious of the police, afraid that his answer would not be fairly recorded, worried at committing himself without legal advice, or some other reason accepted by the jury."

[45]It remained for our courts to articulate the answer for those cases where there were no such operating reasons for silence, only sound legal advice for tactical reasons to remain silent on which an accused can be said "genuinely" to rely, albeit that he has no innocent explanation or none that will withstand examination. Kay LJ, giving the judgment of the Court in Betts & Hall, did grapple with and answer that question. He said that that it is not the quality of the decision to remain silent that matters, but the genuineness of the decision. It is plain from what he immediately went on to say that, in his use of the word "genuineness", he had more in mind than an accused’s genuine belief in the correctness of his solicitor’s advice that he should remain silent and a genuine intention to rely on it. He made plain that, even if there is a "genuine" decision in that sense, whether it is reasonable in the circumstances to remain silent may still require a jury to consider whether the silence was reasonable in that he had or may have had a satisfactory explanation to give at the time consistent with his innocence. If not, it is open to a jury to draw an adverse inference, despite his genuine reliance on his solicitor’s advice. If, on the other hand, he has a plausible reason for silence in the sense that the jury could not be sure that it was not because he had no explanation to give consistent with his innocence, they should not draw such an inference. This is how Kay LJ, giving the judgment of the Court in Betts & Hall put it, at paras. 53-54:"53. In the light of the judgment in Condron v. United Kingdom it is not the quality of the decision [not to answer questions] but the genuineness of the decision that matters. If it is a plausible explanation that the reasons 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.

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 nor 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." [the Court’s emphasis]

[46]Thus, as Kay LJ made plain in the second half of the last sentence in paragraph 53 and the whole of paragraph 54, however sound the advice in law or as a matter of tactics, a defendant is not entitled to hide behind it if, at the time, the true reason for not mentioning the facts was that he had no or no satisfactory explanation consistent with his innocence to offer.

[47]The European Court of Justice, in Beckles v. United Kingdom

(2002) 36 EHRR 13

, EctHR, in paragraphs 64 - … of its judgment, implicitly approved Kay LJ’s formulation and that reflected the guidance in paragraph 5 of the current specimen direction. [And so, seemingly, did this Court in R v. Robinson

[2003] EWCA 2219

, after in a review of the authorities in paragraph 21 of its judgment.]

[48]As we have said, Mr Oliver and Mr Bertham have suggested that the Judge’s direction was wrongly based on decisions of this Court subsequent to and inconsistent with its reasoning in Betts & Hall, namely Howell and Knight, in both of which Laws LJ gave the judgment of the Court. Mr Oliver’s and Mr Bertham’s complaint about these later decisions is that they apply a test of "objective" reasonableness to an accused’s reliance on the advice of his solicitor to remain silent rather than – as they characterised it - a subjective test of "genuineness" of reliance on such advice when opting to do so.

[49]In Howell the appellant had kept silent in interview on the advice of his solicitor, the reason for the advice being that there had been a failure of disclosure by the police. Howell said in evidence that he would have answered the officers’ questions but for that advice. Laws LJ, in paragraph 24 of his judgment, appears to have suggested, albeit softly, some disagreement with Kay LJ’s formulation of the test. This is how Laws LJ put it:

"… 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. … 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 …), 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."

[50]In Knight Laws LJ sought to explain, obiter, that in expressing himself in that way in Howell, he had not understood Kay LJ in Betts & Hall to be saying that proven reliance on a solicitor’s advice to stay silent was sufficient on its own to preclude an adverse inference. However, it is plain from Laws LJ’s remarks, at paragraph 17 of his judgment, that he remained uneasy about Kay LJ’s formulation:

"… We do not understand the court in Betts & Hall to have held that proven reliance on a solicitor’s advice to stay silent without more immunises the suspect from later adverse inference, whatever the quality of the advice. If, however, the text of Betts & Hall might be thought to express such a view, we would disavow it. So far as the bite of precedent is concerned, any difference between Betts & Hall and Howell goes not so much to the reach of any rule of law as to the practical impact of the statute’s phrase ‘a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned’. A shift of view upon such a matter is not to be ruled out of court on grounds of stare decisis. The rules of precedent, not least in the field of our criminal law, by no means require so rigid an approach "

[51]In our view, there is no inconsistency between the approach of Kay LJ in Betts & Hall and that of Laws LJ in Howell and. Knight. As we have said, it is plain from Kay LJ’s judgment that, even where a solicitor has in good faith advised silence and a defendant has genuinely relied on it in the sense that he accepted it and believed it and that he was entitled to follow it,. , it does not preclude t But ta jury may still draw an adverse inference if it is sure that the if true reason for his silence is that he had no or no satisfactory explanation consistent with innocence to give. That is of piece with Laws LJ’s reasoning in Howell and Knight that genuine reliance by a defendant on his solicitor’s advice to remain silent is not in itself enough to preclude adverse comment.

[52]The critical test, which all three judgments underscore, is that as formulated in section 34, namely whether a defendant failed to mention in interview a fact "which in the circumstances existing at the time … [he] could reasonably have been expected to answer". What is reasonable in the circumstances, as Lord Bingham CJ indicated in Argent, is a matter for the jury "in the exercise of their collective common-sense" – an objective test, but by reference to the circumstances of the case, including those known to the defendant. The Judge’s direction to the jury that they should consider in the case of each appellant whether it was reasonable for him to rely on his solicitor’s advice to remain silent, or whether he had no adequate explanation to give and simply latched on to that advice as a convenient shield, is just how Kay LJ put the matter in Betts & Hal,l Hall, and accords with the observations of Laws LJ in Howell and Knight. The direction is also consistent with paragraph 5 of the current JSB specimen direction, and with the dicta, so far as they went on this issue, of the European Court in Condron and Beckles.

[53]We venture the following observations about the rationale of section 34. Its purpose and effect are to qualify a defendant’s otherwise general right to silence, a right for the exercise of which, but for section 34, he needs no justification, whether in the form of legal advice or otherwise. The nature of the section 34 qualification is that he may, in the circumstances specified and through the medium of the court drawing an adverse inference against him, be penalised for exercising the right. The whole basis of section 34, in its qualification of the otherwise general right of an accused to remain silent and to require the prosecution to prove its case, is an assumption that an innocent defendant - as distinct from one who is entitled to require the prosecution to prove its case - would give an early explanation to demonstrate his innocence. If such a defendant is advised by a solicitor to remain silent, why on earth should he do so, unless because of circumstances of the sort aired by the Court in Roble, Argent and Howell, he might wrongly inculpate himself? [Apart from such circumstances, it should normally be irrelevant to the jury question of what an accused "could reasonably have been expected to mention when … questioned" in interview, whether the advice was sound or whether he genuinely or reasonably believed it to be sound.]

[54]It is not the purpose of section 34 to exclude a jury from drawing an adverse inference against a defendant because he genuinely or reasonably believes that, regardless of his guilt or innocence, he is entitled to take advantage of that advice to impede the prosecution case against him. In such a case the advice is not truly the reason for not mentioning the facts. TThe section 34 inference is concerned with flushing out innocence at an early stage or supporting other evidence of guilt at a later stage, not simply with whether a guilty defendant is entitled, or genuinely or reasonably believes that he is entitled, to rely on legal rights of which his solicitor has advised him. Legal entitlement is one thing. An accused’s reason for exercising it is another. His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is - a distinction with which Professor Di Birch in her commentary in the Criminal Law Review in Howell appears not to have grappled, in asserting that the question must surely be "has the suspect genuinely relied on his solicitor’s advice".

[55]The question in the end, which is for the jury, is whether regardless of advice, genuinely given and genuinely accepted, an accused has remained silent not because of that advice but because had no or no satisfactory explanation to give. For this purpose, but only for this purpose, section 34 in its provision for the drawing of an adverse inference, qualifies a defendant’s right to silence. However, it is still for the prosecution to prove its case, section 38(3) of the 1994 Act ensures that a finding of a case to answer or a conviction shall not be based solely on such an inference.

[56]So, in this case it was immaterial to the section 34 question whether Hoare’s and Pierce’s solicitors rightly or wrongly believed that, as a matter of law, Hoare and Pierce were not required to answer the interviewing officers’ questions or whether Hoare and Pierce genuinely relied on that advice in the sense that they believed they had a right to do so.

[57]In this connection, there was a passage in the last paragraph of the Judge’s direction that we have set out in paragraph 39 above, to which Mr Oliver and Mr Bertham objected, namely that the jury were entitled, when considering the reasonableness of either appellant’s silence, to consider the reasonableness of the solicitor’s explanation for that advice. They submitted that the reasonableness or the quality of the advice could not be a relevant factor when considering the reasonableness of an accused’s decision, in reliance on it, not to answer questions. They added that, at the very least, the Judge should have explained the relevance of such explanation by telling the jury that it might help them to decide whether the appellants genuinely acted on that advice.

[58]Clearly, an accused cannot reasonably be expected to assess the reasonableness or quality of his legal advice – to second-guess it. But the nature and basis of the advice – in the Judge’s words in the passage to which objection is taken, "the explanation for the advice" - for example, as in Pierce’s case, the lawfulness of his detention, is of relevance in a negative, as well as a positive, sense to the issue of reasonableness of a defendant’s decision to remain silent. Thus, as we have already said, whether or not Pierce had a good legal basis for complaining about the length of his detention, it does not necessarily follow that it was reasonable for him, if innocent, to have exercised his right of silence rather than giving then the account that he was to give at trial. In other words, it was open to the jury to consider the nature of the explanation, right or wrong, and to consider whether it was relevant or irrelevant to the reasonableness of Pierce’s exercise of a right if he had an innocent explanation to give at the time. In Hoare’s case, no question as to the quality, as distinct from the nature, of the advice arose, but the relevance of the Judge’s direction to the question for the jury is the same. In our view, the Judge, in the whole sentence of which the passage criticised was part, made plain the issue as to the relevance or irrelevance of the explanation for the advice to each appellant’s motive or reason for remaining silent, and, therefore, did not amount to a misdirection.

[59]It follows that legal advice by itself cannot preclude the drawing of an adverse inference, contrary to the suggestion of the editors of the current edition of Archbold in paragraph 15-423. Nor, contrary to their further suggestion in that paragraph is the Court’s decision in Betts & Hall or the current specimen direction, inconsistent with the reasoning of the Court in Condron & Condron, namely that legal advice cannot "by itself" prevent an adverse inference being drawn, though it is "a very relevant" circumstance to take into account in deciding whether the defendant could reasonably have been expected to mention the fact relied on at the time.

[60]Mr Bertham also complained of the Judge’s mention to the jury of his rejection of the submission that Pierce was being detained unlawfully at the time of his interview and was, on that account, entitled to remain silent. He described it as a major distraction, one that would have been likely to lead the jury to conclude that there could not have been a good reason for silence and that they should, therefore, draw an adverse inference from it. Miss Laing, on the other hand, maintained that it would have been misleading if the Judge had not told the jury the true legal position on this, since they might wrongly have assumed in Pierce’s favour that he was unlawfully detained and that that was a relevant and good reason for his silence.

[61]There is force in Miss Laing’s point that mention or no mention by the Judge of his ruling could have led to misunderstanding prejudicial to one or other side. But any possible prejudice to Pierce that could have flowed from mention of it was negatived by the Judge’s observation immediately following it:

"But, nonetheless, that was expressed to be the belief of the solicitor, and it was not suggested to him, when he told you about that, that he did not genuinely hold that belief."

That observation has to be read also with the clear and standard direction that the Judge went on to give that an accused is entitled to place reasonable reliance on the advice of his solicitor in such circumstances. He was entitled to remain silent anyway, as he knew from the caution administered at the start of the interview. The question for the jury is why he exercised that right.

[62]Mr Oliver relied, in Hoare’s case, in addition to the advice of his solicitor, on Hoare’s evidence that he was in fear of the consequences of disclosure of the roles of A, B and C in all this. However, such complaint does not accord with his defence at trial that at the time of his arrest and interview he had no reason to suspect that there was anything unlawful about the chemical process being undertaken in his barn. When taxed in cross-examination about his silence, his only reference was to threats made some months after his arrest, so fear of violence from Messrs A, B or C could not have been a contributory cause of his silence in interview.

[63]In our view, the Judge exercised his discretion correctly in directing the jury to consider whether to consider drawing an adverse inference from the silence of each appellant, and did so in terms that accorded with the law now clearly established by a single line of authorities. Accordingly, we also reject this ground of appeal. Disclosure

[64]As we have mentioned, Hoare’s case at trial was that he had been duped by A, B and C into letting them have the use of his barn for what he believed to be lawful manufacture of a chemical compound for the cure of cancer. At least two of them had apparently been involved in an earlier trial of a similar charge or charges in connection with the production of amphetamine. The Judge, in the course of the trial ordered disclosure to the defence of telephone records of the three men. But there was no prosecution disclosure – and none could have reasonably been expected at that stage – of a fact that came to light in the confiscation proceedings after trial. It was that the forensic scientist and his assistant, who had given evidence in both proceedings as to the chemicals and chemical processes involved in the drug production, said that they had only ever seen the manufacturing process used in the present case in one other case, namely the Woolwich case, and that it was a peculiar process.

[65]Mr Oliver submitted on behalf of Hoare that this post-trial disclosure indicated that the trial had been unfair, because, the jury, if they had known of this fact, would have been more likely to accept Hoare’s evidence of innocent involvement.

[66]Miss Laing said that the new information, if available at trial, would have been of no relevance to the jury’s consideration of Hoare’s defence because it was common ground at the trial that persons other than Hoare may well have been involved in setting up the laboratory in the barn that, on the prosecution case, he used to produce the drugs. It was also accepted by the prosecution that Hoare may have been introduced to and assisted in that method of production by one of those involved in the other trial.

[67]It is hard to see why evidence of the near uniqueness of this process would have assisted Hoare and through him, Pierce. It cannot be, as Mr Bertham suggested, because it would weaken the prosecution case that Hoare was personally involved in the process, for A, B or C could have taught him the process. It cannot be, as Mr Oliver suggested, that it would support Hoare’s evidence that he was not involved in or directing the actual process and that, as he maintained, A, B or C were doing so. That is because, as we have already indicated, it was common ground at the trial that A, B or C may well have been involved in Hoare’s production process. There was evidence that A had been at the barn in the early days of production and that he and C had been involved in the other case. There was evidence that A, in particular, had had a large hand in setting up the laboratory and in advising Hoare as to its processes and that Hoare had eventually taken it over. In our view, it would have added little of significance to what was already before the jury. Or, put more accurately in the terms of section 3 of the Criminal Procedure and Investigations Act 1996, there was nothing in it that might have undermined the prosecution case or that might be reasonably expected to have assisted the defence.

[68]Moreover, information as to the near uniqueness of the process could, as Miss Laing pointed out, have assisted the prosecution rather than the defence, since, on Hoare’s evidence, he knew and had had a long business relationship with A.

[69]Accordingly, we are of the view that this ground of appeal, like the others, is without substance.

[70]For all those reasons, we have dismissed both appellants’ appeals against conviction. ___________________

Hoare & Anor, R v [2004] EWCA Crim 784

Cited in 4 later judgments