Johnson & Anor, R. v [2005] EWCA Crim 971

Case No 2004/05937/C1

[2005] EWCA Crim 971

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Monday, 11 April 2005

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(The Lord Woolf of Barnes)

MR JUSTICE OUSELEY

MR JUSTICE TREACY

Between

R E G I N ACrown

- v -

Between

JAMES GORDON JOHNSON

JODIE THOMAS HIND

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4

Telephone 020-7421 4040

(Official Shorthand Writers to the Court)

MR R I HUNT appeared for APPLICANT JAMES JOHNSON

MR I WEST appeared for APPLICANT JODIE HIND

MISS M CONNOLLY appeared for CROWN

J U D G M E N T

Monday, 11 April 2005

[1]The two applicants in this case are James Johnson and Jodie Thomas Hind. At the start of this morning's hearing they were given leave to appeal against their convictions and so they are now appellants.

[2]Following a trial which took place at Teesside Crown Court before His Honour Judge Fox QC, on 24 September 2004 both appellants were convicted by a jury of burglary (count 1) and of taking a motor vehicle without consent (count 3). At the start of the trial, just before the jury was sworn, both men pleaded guilty to count 2 on the indictment, which was an allegation of theft from the car of the victim of the burglary. The offence was put forward by the appellants as a scavenging theft -- in other words, committed by the two appellants independently of the burglary and the taking of the vehicle which, it was asserted, must have been committed by other people. Having been convicted of the burglary and the taking of the motor vehicle, the judge imposed sentences of five years' imprisonment on each of the two appellants.

[3]The circumstances insofar as they are relevant are these. The victim of the crime was a female in her forties. She was at home alone on the evening of Wednesday 1 June 2004. At about 9.30pm two men knocked on her door. It is not clear if those two men were the appellants. The men said that they were selling items for charity. The complainant did not want to buy anything and she sent them away. She returned to her living room, fell asleep in front of her television and slept until about 3.30am. She awoke at that time and felt a draught. On investigation she found that the front door was ajar and found that her kitchen window and a cupboard door in her hall way were open. When she looked outside her house, saw that her car, a black A Class Mercedes, had gone. She returned to her living room and found that various items were missing, including an overnight bag, a handbag containing nearly £100 in cash, chequebooks, debit and credit cards, a mobile telephone, personal documents and jewellery. In addition to that she found that her car keys had been stolen and a Sony lap-top computer valued at £1200. Property of value had been taken from the car, including a large number of CDs, clothing and paperwork, a briefcase, a portable DVD player and a camera.

[4]The car was later found abandoned. It was examined by a scientist. Fifteen fibres were recovered from the driver's seat and 44 fibres were recovered from the front passenger seat. Scientific analysis showed that fibres taken from the driver's seat matched cotton fibres from the appellant Hind's orange polo shirt and that fibres taken from the front passenger seat matched fibres from Johnson's blue polyester jacket. The defence case was that they were not the burglars; they had found the car abandoned and had got into the vehicle to take items from it and had stolen what they found inside.

[5]It is necessary to give a brief summary of the evidence which was before the court. A Police Constable Turner gave evidence. He said that he had started his shift at about 7pm on the day in question. As part of his daily briefing he was shown pictures on a computer screen of people to whom he should pay particular regard if they were seen by him whilst on duty.

[6]At about 2.30am he was driving his police van when he saw a parked black vehicle similar in shape to the victim's black A Class Mercedes. The interior lights were illuminated. He passed in his vehicle as close as five feet away. He could see two men inside the vehicle. One of them had a torch in his mouth. He was sitting in the passenger seat. PC Turner recognised that man as a person whose photograph he had seen on the computer during his daily briefing at the start of the shift. The officer stopped his vehicle and the consequence of that was that the black car sped off. It was chased by PC Turner, but it got away. In the meantime he had radioed his headquarters. He notified them of the vehicle's getaway and of the fact that he had recognised the passenger. He returned briefly to the police station. He spoke to his sergeant, who gave him Johnson's name. He reviewed the photographs he had seen earlier and identified Johnson as the passenger of the vehicle.

[7]Having obtained Johnson's address, he went to Johnson's house, arriving there at about 2.45am. When he knocked on the door there was no answer and no sign that anyone was inside. He was then called away to what he thought was another incident. In fact it was related to the present matter because it involved the finding by a member of the public of the complainant's lap-top. Having dealt with that matter, PC Turner returned to the police station and there learnt that the complainant's home had been burgled. He then linked the matters that he had seen and the recovery of the lap-top to the burglary of which he had just been informed. Accordingly, he went back to Johnson's address. When he arrived, shortly before 4am, he saw a man at a window whom he recognised as being the same person who had been in the passenger seat of the black car. He went into the house and established that the man he had seen at the window was Johnson.

[8]PC Turner was joined at that address by his colleague, PC Marron. PC Marron's evidence was read to the jury as agreed evidence. Before PC Marron gave his evidence there was an exchange before the jury in which counsel for the defence confirmed that his evidence was agreed. PC Marron said that he entered the house in question and, having gone into the living room, he heard movement coming from the kitchen. He went to investigate. On going into the kitchen he immediately recognised Hind whom he knew from previous dealings. He also noticed that on the kitchen floor there were electrical items. These turned out to be some of those which had been stolen in the course of the burglary in this case. Hind was asked to go into the living room. Once both Hind and Johnson were in the living room, they were told they were under arrest. On being informed of this, Hind attempted to escape through the living room window. Although this was put forward as agreed evidence, when Hind came to give evidence he disagreed with the assertion that he had tried to escape.

[9]In interview Johnson's account was that on the night of the burglary he did not leave home at all, but he recalled Hind coming to his house with a holdall at about 3.10am. He denied that he had ever been a passenger in the black vehicle. He also denied any knowledge of the stolen items. At trial he gave a different account and he had to acknowledge that the account given in interview was a lie.

[10]When Hind was interviewed matters took a different turn. Detective Sergeant Ryder said that fifteen or sixteen hours after Hind's arrest and arrival at the police station he wished to interview him. He therefore went downstairs to the cell area. He was accompanied by Hind's solicitor and a custody sergeant. DS Ryder said that Hind positively refused to leave his cell for the purpose of being interviewed. He said that, having refused to leave his cell for the purpose of interview, Hind was cautioned by him. Because Hind did not leave his cell, he was never interviewed and therefore no explanation or version of events was put forward by Hind at that stage of the investigation.

[11]However, at trial Hind gave evidence. He said on oath that on the evening of the burglary he had met friends and had gone with them to Johnson's house. He, his friends and Johnson had taken heroin and at about 2.30am he and Johnson had gone out to buy some crack cocaine. During their journey, having made a successful purchase of drugs, they found the complainant's car abandoned on a car park with its doors opened. Seeing there was nobody in the area, they decided to steal from the car. Each of the two men got into the car. He (Hind) got into the driver's seat and Johnson sat in the passenger's side. This is consistent with the scientific evidence. They looked for items to steal, took items, left the car and returned on foot to Johnson's house. He denied in his evidence that he had been in the car when the police vehicle came alongside and the black car subsequently drove away. He said that whoever was involved in that incident, it was not himself and Mr Johnson. Further, in the course of his evidence he denied that when he was told that he was under arrest he had tried to escape. He denied that he had positively refused to be interviewed. He claimed that he had been tired and had merely rolled over when the police attended at his cell to take him for interview. He had not made the positive refusal to be interviewed that the officer described.

[12]Hind was cross-examined by counsel for the Crown who put to him that the reason for his refusal to be interviewed was that he had not at the time thought up a convincing account to give in interview.

[13]Johnson's case, as already foreshadowed in this judgment, changed from that which he put forward in interview. He now acknowledged in evidence that he had left home and that the purpose of that was to go and buy drugs with Hind. He now acknowledged that together with Hind he had taken property from the car and taken it home. But he denied that he had committed the burglary or had any part in the taking of the A Class Mercedes in the way alleged by the Crown. He explained his lies to the police in interview as panic as a result of his shock at the suggestion that he had committed the burglary.

[14]During the course of the trial, and before the summing-up, an incident occurred which we must recite. On the penultimate day of the trial a female juror was approached by a member of the public who sought to intimidate her and invited her to find the defendant not guilty. The police carried out an investigation. The investigation showed that the intimidator, who had indeed approached a juror that day, had approached a member of the wrong jury. It appeared on investigation that there was another trial taking place at the same Crown Court, which involved as a defendant the brother of the person who wrongly approached a member of the jury in this case. The judge in this case adjourned the trial while that inquiry took place. When the result of the inquiry was made known to him, the judge addressed the jury. He told them that the police had investigated the incident. He reminded them of the oath which they had taken to reach a verdict on the evidence and said that the matter should not be held against the appellants by the jury in their determination of any issues in the case. We will return in more detail to what was said by the judge at this point. The judge asked the jury whether any of them felt difficulty in continuing to give full and fair attention and consideration to the case. No member of the jury indicated any unwillingness to continue with the case.

[15]In this appeal both appellants advanced a common ground of appeal in relation to the handling of the judge's approach to the jury. It is agreed before us, as it was before the judge, that the police investigation had positively revealed that the juror in this case had been approached in error. In other words, the target of the illegal interference should have been a different juror on a different jury. Complaint is now made that the judge's directions to this jury were insufficient in the light of that known fact, and that the directions did not rule out the possibility of involvement by the appellants in the approach to the jury.

[16]The judge began by telling the jury that the police had investigated the matter, but he did not tell them the result of the police investigation, namely that it appeared that the approach was nothing to do with this case. He went on to say:

"The matter that I want to say is that whatever happened yesterday or anyone's understanding of what may have happened yesterday is not something that should be held in any way against either of the defendants in this case in any decision of yours, the jury, and in any determination of any of the issues in this case. You took an oath to reach a verdict on the evidence in the case. You heard all the evidence in the case and what has arisen since is not something that has any bearing or can have any bearing upon the issues in the case, and so there should not be any inference drawn by any member of your jury with regard to any of the issues in this case and with regard to the verdicts to be returned against either Jodie Hind or James Johnson. Whatever happened is a matter for separate enquiry, but there is no reason whatever to think that it was initiated or instigated by either or both of them, and so it would be unfair to draw an adverse inference against either of them from whatever may have occurred or your understanding of what may have occurred. So that is the thing that I said I want to say."

The judge went on to ask the jury whether they were able to give full and fair attention and consideration to the case.

[17]Counsel for the appellants submit that that direction given by the judge was inadequate. They submit that it leaves open the possibility that the appellants were involved in the approach; that there was the possibility that others acting on behalf of the appellants were behind the approach; and further, that those directions left the impression that the investigation was not conclusive. It is submitted that, since the information before the court pointed to the fact that this was an error by the person who wrongly approached the juror and who had nothing to do with the appellants, that should have been made clear to the jury, and that the directions which were given left it open to conclude that what had occurred had something to do with the appellants when in fact it was known that it was not.

[18]We have taken account of those criticisms made by the defence. It might have been advisable for the judge to have given a direction in more emphatic terms, given the information in his hands; but he had to deal with the matter based on his feel of the case and his appreciation of the situation as he saw it. We consider that the judge sufficiently protected the appellants' interests by telling the jury that it would be unfair to draw an adverse inference and that they should not hold the incident against the appellants in any way. In our judgment the judge's approach provided the jury with a clear direction that they should not in any way hold the incident against the appellants. We consider that the jury would have understood that. In our judgment this is not a matter in respect of which we feel that the judge fell into error.

[19]We next consider discrete grounds advanced first of all on behalf of the appellant Hind. The first ground concerns his refusal to be interviewed and his refusal to leave his cell for the purpose of interview. It is asserted that the evidence of what took place in the cell area was not admissible and that the judge's comments thereon in the course of his summing-up wrongly allowed the jury to draw an adverse inference from Hind's refusal to be interviewed. The assertion made by the appellant is that in the circumstances no such adverse inference was available to be drawn. The submission is based on the ground that the conditions which are required to be established pursuant to section 34(1)(a) of the Criminal Justice and Public Order Act 1994 had not been established and thus the judge was wrong to allow the jury the possibility of drawing an inference against Hind.

[20]Section 34(1)(a) of the 1994 Act provides as follows:

"(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, charged or informed as the case may be, subsection (2) below applies."

Subsection (2)(d) provides:

"Where this subsection applies, 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."

It is necessary also to draw attention to section 34(5), the effect of which is to preserve the common law as it existed prior to the implementation of the 1994 Act.

(b) provides:

"This section does not -- (b) preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section."

[21]Prior to the commencement of the trial, the judge ruled that the evidence of the refusal to come out of the cell was admissible. The matter was revisited at a later stage of the trial when the judge ruled on whether or not prosecuting counsel could cross-examine in relation to that evidence. The judge said:

"It is plain to me that the provisions of section 34 of the Criminal Justice and Public Order Act 1994 do not apply to the present situation, save for section 34(5) which preserves the common law position." (The reference to the provisions of section 34 are, by common consent, agreed to be a reference to section 34(1)(a).) The judge continued: "

The common law position is in this situation in my judgment most helped by reference to Lord Justice Stocker's words to be found in Archbold, Chapter 15, paragraph 412." (The trial judge was quoting an extract from R v Raviraj

(1987) 85 Cr App R 93

, 103). He continued:

"I quote: 'The doctrine is only a particular aspect of the general proposition that where suspicious circumstances appear to demand an explanation, and no explanation or an entirely incredible explanation is given, the lack of explanation may warrant an inference of guilty knowledge in the defendant. This again is only part of a wider proposition that guilt may be inferred from unreasonable behaviour of a defendant when confronted with facts which seem to accuse.'"

[22]In the summing-up the judge reminded the jury that Detective Constable had given evidence of a positive refusal by Hind to come out of his cell. He then drew the jury's attention to a conflict of evidence between DC Ryder and the appellant Hind, who said that he did not positively refuse; he had merely been asleep and rolled away. The judge told the jury that if they came to the conclusion that DC Ryder was right and that Hind had positively refused to be interviewed, then they should bear a number of things in mind before they came to any conclusion that this was even a straw in the wind which indicated Hind's guilt on either or both of the charges on the indictment. He reminded the jury that Hind had been cautioned at the time of his arrest and told that he had a right to remain silent, and that he was acting in his rights to say that he was not going to answer any questions and was not going to come out of the cell to be interviewed. But he went on to say that the jury had to be fair in their approach to the whole question of what they made of that area of the evidence. Having said that, he reminded the jury of the Crown's case and the cross-examination by Miss Connolly in which she had put forward the suggestion that Hind had refused to be interviewed because he had not by then thought up a story that anyone would swallow. The judge said to the jury that they should only draw an inference of that sort if they thought it was fair and reasonable to do so in the circumstances of a particular case. He warned them to be careful in deciding what inference they should draw. But he said that if at the end of their deliberations the jury felt they could say that this episode was a pointer towards guilt, then they could treat it as such, although it could not prove guilt or even be the main reason for finding guilt. He reminded them at the end of his direction on this area of the case that "the bottom line" was whether the circumstances called for a different reaction on Hind's part and whether his behaviour was fair and reasonable in the circumstances or whether there was an inference to be drawn from his behaviour. He said that it would be a pointer or a straw in the wind if such an inference could be drawn.

[23]The position, therefore, is that evidence of Hind's refusal was admitted before the jury. It was cross-examined to by the Crown and a positive suggestion was made by Crown counsel. It was made the subject of a direction by the judge which, even applying the safeguards referred to by the judge and summaries above, could have resulted in an evidentially adverse finding to the appellant Hind.

[24]The appellant Hind's case was that none of the foregoing should have occurred. It is submitted that the evidence was not admissible, that it should not have been commented on in cross-examination by the Crown, nor should it have been the subject of a possible adverse inference by the jury. The appellant contends that section 34(1)(a) does not apply. The judge, as we have seen, agreed with that submission, but said that the evidence was admissible at common law under section 34(5). The appellant contends that that ruling was incorrect. The Crown has argued that the evidence was admissible under section 34(1)(a) but, failing that, relies on section 34(5).

[25]The Crown's submission that section 34(1)(a) applied is based on the assertion that that subsection is to be construed broadly; otherwise, say the Crown, the provision can be circumvented by a refusal to attend an interview and that this would frustrate the purpose of the legislation. The Crown point to the decision of the House of Lords in R v Webber

[2004] 1 Cr App R 40

where at paragraph 33 it was said that the object of section 34 was "to bring the law back into line with common sense". They further say, rightly, that the object of section 34 is to achieve an early disclosure of a suspect's account.

[26]The Crown argues that there is no qualitative difference between a defendant who is taken to an interview room and who after caution does not answer questions and who subsequently at trial puts forward for the first time a detailed account, and a defendant who, knowing he is to be interviewed, positively refuses to leave his cell for that purpose, even though he has had the caution administered to him.

[27]The difficulty lying in the way of the Crown's submission is in the wording of section 34(1)(a). The wording, to which we have already referred, refers to a suspect who, on being questioned under caution by a constable, fails to mention a fact which he later relies on in his defence. Although in order to construe the statute it may be permissible, as in Webber, to give a broad rather than a narrow, pedantic meaning to a word or a phrase, the language of the statute cannot be ignored. Notwithstanding the submissions of the Crown, we do not feel able to regard what occurred as coming within the ambit of the phrase "on being questioned". No question was, in fact, put. What occurred was a precursor to that stage of the process. The matter is emphasised, in our view, by reference to the words of the caution itself which are:

"You do not have to say anything, but it may harm your defence if you do not mention when questioned [our emphasis] something which you later rely on in court. Anything you do say may be given in evidence."

Further support for our view may be found in R v Argent

[1997] 2 Cr App R 27

, where at pages 32-33 Lord Bingham CJ laid down six pre-conditions which had to apply before section 34 could operate. The third of those pre-conditions was that the failure to mention a fact had to occur during questioning under caution. Accordingly, we agree with the view of the trial judge that section 34(1) did not apply to this situation.

[28]That leaves the question of whether the position at common law, as preserved by section 34(5), avails the Crown, as the judge held that it did. The judge relied on the passage we have already cited from the judgment of Stocker LJ in Raviraj. The appellant Hind asserts that those observations were made in the context of a very different point which related to the effect, if any, of the failure of an offender to offer an explanation for the fact of possession of stolen goods to which the doctrine of recent possession applied. He submits that that is very different from the situation which arose in this case of a failure to respond to an invitation to make himself available for questioning in the context of the investigatory process of this case. It appears that the trial judge was referred only to the extract from Raviraj which we have cited above. However, reference to the full report shows that there was material which may well have led the judge to a different conclusion. At page 106 of that report, after considering a number of authorities, Stocker LJ cited from the judgment of this court in R v Gilbert

(1978) 66 Cr App R 237

. He cited with approval the following passage as an accurate statement of the law as it existed in 1987 (and thus prior to the passing of the 1994 Act). He said:

"At page 244 Lord Dilhorne, giving the judgment of the Court, said: 'There are a large number of reported cases arising from comments made at trials on the failure of the accused to disclose the defence put forward at the trial when questioned by the police or at an earlier stage of the proceedings. It is, as Lord Parker CJ said in Hoare (1966) 50 Cr App R 166, 169, not possible to reconcile all of them. It is in our opinion now clearly established by the decisions of the Court of Appeal and of the Court of Criminal Appeal that to invite a jury to form an adverse opinion against an accused on account of his exercise of his right to silence is a misdirection .... We regard the present position as unsatisfactory. In our view it may not be a misdirection to say simply "

This defence was first put forward at this trial," or words to that effect, but if more is said it may give rise to the inference that a jury is being invited to disregard the defence put forward because the accused exercised his right of silence, in which case a conviction will be placed in jeopardy. It is not within our competence sitting in this Court to change the law. We cannot overrule the decision to which we have referred. A right of silence is one thing. No accused can be compelled to speak before, or for that matter at, his trial.'" The passage cited makes plain that the Court of Appeal in Gilbert, as approved by this court in Raviraj, was stating that as far as the common law was concerned, a judge was not entitled to comment adversely on an accused's failure to respond to police questioning or to volunteer his account of events at a stage prior to the trial.

[29]We view the passage just cited, which was not drawn to the trial judge's attention, as one which has much greater relevance to the circumstances of this case than the passage which was referred to by the judge. In reality the appellant Hind was in an emphatic way exercising his right to silence, which has to be tested under section 34(5) of the 1994 Act. It has to be tested by reference to the common law in existence prior to the passing of the 1994 Act.

[30]It follows that in our judgement, adopting the passage cited and the position at common law prior to the passing of the 1994 Act, no comment of the sort made by the judge or the Crown was permitted where there was a failure to disclose the defence ultimately put forward at the trial, even in a case where the questions were put by the police to the appellant. Whatever the position might be at common law in relation to silence in the face of accusations made by others who were not police officers or concerned in the investigation of offences, it does not apply in this situation where the common law provided protection to an offender who did not wish to answer questions and who did not wish to reveal his case before trial.

[31]It follows that the jury in this case should not have been directed that they could draw an adverse inference from the appellant's refusal to make himself available for interview. Nor should the Crown have been permitted to cross-examine as they did. Accordingly, we uphold the appellant Hind's submission on this point. We will return later to the impact our finding has on the safety of the conviction.

[32]The Crown express concern that if the appellant's submissions were upheld it would enable defendants to avoid section 34 inferences by adopting the course which the appellant Hind did. We do not agree that this is necessarily so. First, no argument was put before us or the trial judge in relation to section 34(1)(b) of the 1994 Act. Secondly, in circumstances such as the present of a refusal to attend interview, the police may choose to put questions to the suspect, adapting as far as possible the protections contained in Code E. It would be for the Crown Court on some future trial to determine whether such a procedure was fairly admissible and whether, in the event of continued refusal to mention any fact later relied on, the provisions of section 34 were triggered.

[33]Further, we draw attention to the provisions of the current Codes which regulate interviews. In Code C12.5 and Code E3.4 there are provisions which deal with the situation which arose in this case and give guidance to the police in such circumstances. In our judgment the pessimism expressed by the Crown as to the effect of any ruling in favour of the appellant is not well founded in the light of those matters to which we have drawn attention. We were also informed by Mr West that he was aware anecdotally that in the early days after this provision came into force, some defendants had attempted to frustrate section 34 by refusing to attend an interview and that the matter had been dealt with by the Metropolitan Police by posing questions to a suspect in the cell area. It is said that such a practice had caused attempts by suspects to circumvent the legislation to cease.

[34]We move on to consider other grounds of appeal advanced on behalf of Hind. Complaint was made about the way in which the judge dealt with factual disputes between Hind and the Crown. It will be recalled that Hind disputed in his evidence that he had attempted to escape and he disputed that he had positively refused to emerge from his cell for questioning. In the light of what we have already said on the latter issue, we do not need to address further that part of Mr West's submissions. But as to the former, we consider that the judge properly highlighted the factual dispute which existed as to the alleged escape between the police officer on the one hand and the appellant Hind on the other.

[35]The judge was fully entitled to draw attention to the fact that Hind disputed the escape at a late stage of the trial. The transcripts which we have show that shortly before the officer was called to give evidence on the point, Hind's counsel, in his presence, told the court that the evidence was agreed. The jury heard this at the time. When Hind, therefore, gave an account which was at variance with that which had been presented to the jury as agreed evidence with the consent of defence counsel and in the presence of Hind, it is hardly surprising that the judge felt compelled to explain to the jury counsel's role in the case and the significance of the apparent change in position. We see nothing wrong in the way in which the judge approached the matter. He was bound to do so following the way matters had developed in the trial.

[36]We do not accept counsel's criticism that the issue of escape or the issue of refusal to emerge from the cell were "manufactured" disputes of fact. It is unclear as to whether counsel was submitting that they were manufactured by the judge or by the Crown, but in either case, because of the events which had arisen during the course of the trial, the judge had to deal with them in the course of his summing-up.

[37]However, in relation to the escape attempt there is some force in a further argument advanced on behalf of the appellant Hind. Complaint is made that the judge failed to invite the jury to consider, as he had done in the case of Johnson when he directed the jury on lies told by Johnson in his interview, whether if they found that Hind had attempted to escape, this was equally consistent with his wishing to conceal his guilt of theft at this stage, as opposed to the burglary or the taking of the vehicle. No such qualification was put before the jury for their consideration in the context of this episode in the evidence. We feel that there is force in the complaint made by counsel in that respect.

[38]Mr Hind further complains about identification directions which were given. Unusually these were identification directions given not in relation to him, but in relation to his co-accused Johnson. Hind says that the directions which were given in relation to Johnson were relevant to his case because although he was not identified by the officer, his case was that he was with Johnson at all material times and thus he was affected by the evidence of identification and any failure or flaw in the directions given in that area would have an impact in his case as well.

[39]Three specific matters are pointed to as being absent from the identification directions. First, the judge did not explain to the jury why there was a special need for caution in identification cases. Secondly, the judge did not tell the jury that a convincing witness might be a mistaken witness. Thirdly, this being a case where part of the process involved looking at a photograph which the jury had not seen, the judge did not draw attention to potential difficulties which may exist when photographs form part of the identification process. Potential difficulties may arise in terms of quality and resemblance to the suspect, but complaint is made that no comment or direction was given to the jury in relation to that aspect of the matter.

[40]No precise form of words is required for a Turnbull style direction. What is important is that the jury is exposed to the full force of the Turnbull directions in any case where the issue of identification forms a substantial part of the case advanced for the Crown. In our judgment there is some force in the criticisms made in the respects that we have already recited. It is right to say, in fairness to the judge, that his direction was full in terms of potential difficulties or weaknesses of the circumstances of identification. It focused on the necessity for the jury to assess the reliability of the witness's evidence, and of course the identification issue has to be viewed in the context of a case where there was scientific evidence linking the appellant Johnson to the very seat in the vehicle in which the police officer said that he had identified Johnson and where, very shortly after the purported recognition or identification, the police had visited Johnson's home and found stolen goods which related to the burglary in question. The arm of coincidence has stretched a long way in this case in reaching out towards Johnson. However, there are respects, which we have already mentioned, in relation to which criticism can be made of the identification direction. As far as that aspect of the matter is concerned, counsel for Johnson did not make separate submissions, but we understood him to adopt the submissions in relation to identification made on behalf of the appellant Hind.

[41]Johnson himself raised discrete grounds of appeal. The first matter which he raised related to the question of his character. His complaint was that the jury wrongly learnt of his (Johnson's) bad character in a number of ways. First, PC Turner gave evidence in-chief as to having seen Johnson's photograph on a police computer during his evening briefing. That, it is said, would tell the jury that Johnson was of bad character. Secondly, complaint is made because PC Turner gave evidence of having been provided with Johnson's name by another police officer before he checked the image on the computer after he had made purported identification from his car. Again that is said to point in the same direction. Thirdly, complaint is made that the judge in his summing-up spoke of the officer having viewed the images at the briefing as being images of people the officer had a duty to keep in mind on that evening.

[42]It has to be remembered when these complaints are made that Johnson's character in other respects was already before the jury. His own case was that he had been involved in taking Class A drugs; that he had gone out that evening with another to purchase further Class A drugs; that he had stolen items of some value from what he said was the victim's abandoned car; and that those items had then been taken back to his house. Further, his case was that he had lied in the account which he initially gave to the police of having spent the evening at his home and had not left it for any purpose whatsoever. Accordingly, the matters now complained of must be seen in that context.

[43]It seems to us that the evidence as to the officer's viewing to the images before and after the purported identification of Johnson was evidence which was relevant for the purpose of assessing the accuracy of the identification and the circumstances in which it had been made. Given that there was a dispute on identification, it was in our view inevitable that evidence of this sort would emerge at the trial. The way in which it was put before the jury did not go beyond that which was necessary for the relevant purpose which we have identified. We consider that for its probative purpose it was not outweighed by considerations of prejudice.

[44]We have given separate consideration to the judge's remark in summing up. We do not consider that it adds materially to the fact that the image was held on computer, and so we do not conclude that it was objectionable in the context in which it was made. It explained why the officer kept the image in mind when he went out on his duties on the night in question and was thus able to make an identification when he saw a person in the car.

[45]Finally under this heading, complaint is made (and it is made jointly with Hind) of the fact that PC Turner volunteered to the jury that the co-appellant Hind was known to him from some prior incident or dealings between the officer and Hind. It was submitted that Johnson would have been prejudiced by this remark by reason of his association with Hind. In our judgment the judge rightly rejected an application at trial by Hind for the jury to be discharged. The judge said that there was no necessary adverse inference to be drawn from the remark and that no further reference should be made to it. This is not an uncommon situation in a trial. What occurred was not something of such drama or significance as to stand out in a way which would have required a different course. The judge had a discretion. We do not consider that it was wrongly exercised in this instance. Nor are we persuaded that the incident has any cumulative effect in Johnson's case on the ground of character upon which Johnson could successfully rely. Accordingly, the complaints made as to the asserted admission of bad character through these various means is not one which we consider has substance.

[46]In the course of this judgment we have identified two particular areas in which we have said that the judge dealt with matters in a way which was not satisfactory. One is the way in which the question of adverse inference arose. On this type of issue much depends as to the way in which the case was put to the jury by the judge and the place which any particular matter has in the scheme of the case as a whole. In relation to the section 34 aspect, once the evidence of the confrontation in the cell area was admitted, it is our judgment that under the common law the jury should have been directed either to ignore the incident or at the very least not to hold the refusal of the defendant to attend for interview against him. In other words, there should have been positive direction by the judge to the jury that they should not make use of that material in a way which was adverse to the defendant. That did not happen in this case. The judge, albeit with careful safeguards, left it open to the jury to draw an inference adverse to the appellant Hind from his failure to emerge for interview. The judge called it a pointer or a straw in the wind, but it was something nonetheless which was left in the case, not as something to be ignored or not held against the appellant, but as something which might tell against him if the jury saw fit. Furthermore, the jury had seen Crown counsel cross-examine Hind and put to him positively that the reason for his failure to leave his cell for the purpose of interview was because he had not yet made up the explanation which he was falsely, the Crown would say, putting forward at trial. That assertion by the Crown was repeated to the jury by the judge as an inference that they could adopt if they saw fit, notwithstanding the warnings that the judge had given to them. Therefore, far from being told to ignore or not hold the appellant's actions against him, in those respects it was left open to the jury to use this material against him.

[47]There seems to us to be a further respect, which we have already touched upon in this judgment, of which criticism can be made. It is asserted that in dealing with this issue the judge failed to point out to the jury for their consideration that the failure to emerge for interview might be referable to the fact that the defendant was guilty of theft as opposed to the allegation of burglary or the taking of the motor vehicle. He did not leave that matter for their consideration or leave it to them as a factual scenario on which they could come to a conclusion.

[48]We turn to the question of identification. As we have observed, in many respects the identification made by the police officer was supported by the argument of coincidence and the available scientific evidence. Notwithstanding that, it appears to us that in the three respects which we have earlier identified the direction which was given on identification did not include evidence which should have been included in the direction in the context of this case. It may be that had the question of the direction on identification stood alone, that would not of itself have been sufficient to call into question the safety of the conviction. But we have come to the conclusion that there is a cumulative effect in this case. Hind was affected by the identification direction and directly affected by the matters under section 34. Given the matters to which we have already drawn attention, we are unable to say that the conviction in his case was safe.

[49]We turn to the case of Johnson. He would have been directly affected by the identification direction issue and, since both men were alleged to have been together at all material times, he may have been affected in the eyes of the jury by the position which was taken in relation to section 34 on the account put forward by Hind at trial.

[50]Accordingly, we have come to the conclusion that in Johnson's case, too, the convictions should be regarded as unsafe. In each case the jury's verdicts will be quashed. THE LORD CHIEF JUSTICE: Miss Connolly, are you asking for a retrial in this case? MISS CONNOLLY: I am, my Lord, yes. THE LORD CHIEF JUSTICE: Can you oppose that, Mr West? MR WEST: My Lord, yes, we would submit that the court should exercise its powers simply to quash the convictions for burglary and taking the conveyance and proceed to sentence on the matter of theft, which was a separate count to which each defendant pleaded guilty. THE LORD CHIEF JUSTICE: Why should there not be? There is a very substantial case against both these defendants. Why should there not be a retrial? MR WEST: My Lord, we submit that it would be unfair to send them back for a retrial in relation in particular to two aspects of the case which now they would face a different situation to that which they faced at their trial last year. The first is the bad character provisions. The Crown could now -- whether they would of course remains to be seen -- they could, and we would not be able to oppose it on any lawful grounds or discretionary grounds if they did, be able to put in the evidence in the retrial the bad character of these two defendants. So that is one reason. The second is this. In particular in relation to Hind, your Lordships have said that in relation to the aspect of not coming out of the cells, effectively Mr Hind should not have had that evidence adduced before the jury, he should not have been cross-examined about it and the direction should not have been given. In the trial that took place there was no reference to any other adverse inference direction. Your Lordships referred to the section 34(1)(b) direction. It would be unfair to Mr Hind, when he has had one trial in which matters have gone as awry as he did in relation to the identification of Hind which you found to have substance, and the adverse inference direction which your Lordships found to have substance, when added to the additional prejudice that he may face when it comes to the possibility of a bad character direction in his case, it would not be right effectively to put him through having a second trial on different terms to that on which he had his first trial which should have been conducted in a different way, as your Lordships have found. So, in our submission, the right course, perhaps exceptionally given the intervention of Parliament in relation to particularly bad character, and the other factors that I have mentioned, the right course would simply be to quash the conviction and sentence him for theft. THE LORD CHIEF JUSTICE: Thank you. Anything you wish to add, Mr Hunt? MR HUNT: My Lord, I have been listening with care to your Lordships' comments that this seems to be a case distilling towards events after the initial identification in the car. I submit that it is also within your Lordships' discretion to substitute, even on the count of burglary, a count of theft. THE LORD CHIEF JUSTICE: Yes. (The court conferred) THE LORD CHIEF JUSTICE: We order a retrial. We have to give certain directions. We allow the appeal and quash the convictions. We specify the counts which are quashed, namely those to which the defendants did not plead guilty but which they contested. We direct that a fresh indictment be preferred and direct that the defendants be arraigned on the fresh indictment within two months, as amended by section 43 of the Criminal Justice Act 1988. Thank you for your assistance. We are very grateful to you. ____________________________________