B & Anor, R v [2008] EWCA Crim 365

No: 200702965 B1; 200703470 B1

[2008] EWCA Crim 365

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 7th February 2008

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE LATHAM

(Vice President of the Court of Appeal Criminal Division)

MR JUSTICE FIELD

SIR PETER CRESSWELL

Between

R E G I N ACrown

Between

"B"

"S"

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Miss C Ryan appeared for Appellant"B"

Mr T Bowden appeared for Appellant "S"

Mr R Miric appeared for Crown

Mr H Keith appeared as Advocate to the Court

J U D G M E N T

LORD JUSTICE LATHAM:

[1]We have before us today appeals against sentence from both of the appellants and an appeal against conviction by one, that is "B". As far as the appeals against sentence are concerned, both have now been abandoned and we say no more about those. We turn then to the appeal against conviction by the appellant B.

[2]He, together with the co-appellant "S" and one other, appeared for trial at the Wood Green Crown Court, where on 4th May 2007 the appellant B was convicted of attempted robbery, the appellant S was convicted of affray and a co-accused, "D", was also convicted of affray. The co-appellant S and the co-accused D were both acquitted of the count of attempted robbery which they faced in conjunction with the appellant B. B appeals against conviction by leave of the single judge.

[3]The facts out of which the charges arose concerned events on a bus on 7th February 2006. Both the appellants were school boys. On 7th February 2006 they were on the top deck of a bus together with the victim in relation to the attempted robbery, who was a 14 year old boy. The victim was sitting with his cousin and his sister a few seats away. B, S and D were also on the top deck of the bus.

[4]The prosecution case was that B approached the victim and his cousin and asked if he had any music on his phone. The victim said he did not have a phone on him. B then searched his pockets to verify it and took out from the pocket a bus pass, which the victim then took back and put back in his pocket. There was then an argument. The victim stood up. B then headbutted him; and it was after that that B threatened, according to the prosecution, the victim that he would suffer violence if he did not hand over his belongings. The threats, it was said, were that S and D would harm him. That was essentially the basis of the prosecution case.

[5]The incident ended when the victim managed to get up and get off the bus. He was in fact followed off the bus by B and others and there were further altercations, but they add nothing to the important part of the story which related to the allegation giving rise to the charge of attempted robbery.

[6]The defence was simply that, whilst accepting that there had been an incident involving an altercation between the appellant and B during the course of B had headbutted the victim, he had only done so because when the victim stood up he, B, was concerned that he might be attacked and he was therefore simply acting in self-defence. He denied that there was any question of his having threatened the victim so as to justify a count of attempted robbery.

[7]As far as the prosecution case was concerned, it was essentially based on the evidence of the victim, the victim's cousin and the victim's sister.

[8]As far as the other evidence in the case was concerned, it included evidence relating to the appellant S, who had been the first of the three eventual defendants to have been interviewed by the police. In the course of that interview, which was recorded, the appellant S talked about a conversation which suggested that B was interested in knowing what the victim had on him and described during the course of the incident "the boy [referring to B] that was robbing the next boy", who was the victim. There were other answers in which the appellant S indicated that there was violence on the part of B against the victim.

[9]During the course of the appellant S's cross-examination he was not surprisingly asked about those parts of his interview in which he appeared to have been saying that B had indeed been seeking to rob the victim and had been violent towards him. The appellant S, whilst admitting that he had said those things (which he could hardly deny because they were on the recording), said that was not his recollection now. He could not remember anything that had happened before B headbutted the victim and that nothing thereafter had happened which could have been construed as robbery.

[10]The question then arose, apparently at the instigation of the co-accused D but also with the support of Miss Ryan acting on behalf of the appellant B, as to how those questions and answers and the contents of the interview should be treated by the judge.

The judge made a ruling, it would appear not having heard full argument, in the following terms:

"Let me make it absolutely plain by way of ruling, Mr [S] has given evidence. What he says in his interview becomes evidence in the case against all defendants, in those circumstances, because he's adopted his interview, in the sense that he has accepted that he said to the police what he is recorded as saying; there is no dispute about that, there hardly could be."

[11]In those circumstances, when it came to summing-up the case to the jury, the judge directed them in accordance with his ruling to the effect that what the appellant S had said to the police was evidence which they were entitled to consider in the prosecution case both against the appellant B and the co-accused D, and it was entirely a matter for the jury to determine the extent to which it supported the prosecution's case. At a subsequent stage the judge then repeated that direction but in the following terms:

"[S], of course, knew he might be a potential defendant in this case, that he might have his own interests in distancing himself from these events. So, even then when I told you when dealing with the prosecution case that it's all evidence in the case, what [S] said to the police in his interview, and you can consider it against and for all defendants, take special caution in using it in any way against [D]; and exactly the same goes for [B], because of the possibility that [S] would have had his own interests in distancing himself from [D] and [B] so as these events are concerned."

[12]The first and main ground of appeal to this court in relation to this conviction is that the judge was not entitled to make the ruling that the contents of the interviews were admissible, and that, if and insofar as he was entitled to make that ruling, he failed to direct the jury adequately as to the dangers of relying on the contents of the interview.

[13]It is and always has been trite law that if in a trial a particular defendant adopts, in the sense of agrees to and accepts, the contents of an interview to the police, that immediately makes the contents of the interview part of his evidence. That is pure common sense; it is part of his oral evidence to the jury. But when one uses the phrase "adopting his interview", that does not mean, as the judge appears to consider here, accepting that that is what he said; it means making the contents of the interview part of his evidence, in the sense of agreeing that that is what happened.

[14]What does not appear to have happened in this case was a proper appreciation of the status of the contents of the interview in the light of the provisions of the Criminal Justice Act 2003. The statements made by the appellant S in interview constitute hearsay evidence under section 114 and could be considered for admission before the jury in the context of the code contained in section 114. Further, because the appellant stated that he could not remember the events which he had talked about in interview, the contents of the interview also constituted previous inconsistent statements within the meaning of section 119 of the 2003 Act and were accordingly admissible in accordance with the provisions of that section, but subject always to the provisions of section 78 of the Police and Criminal Evidence Act and section 126 of the 2003 Act.

[15]It follows that there is validity in the criticism made by Miss Ryan on behalf of this appellant as to the way in which this evidence was admitted by the judge, in particular the fact that because he did not consider the provisions of section 114, section 119, section 126 and section 78 of the Police and Criminal Evidence Act, he did not apply his mind to the safeguards contained within that code relating to the admissibility of, on the one hand, hearsay evidence and, on the other hand, previous inconsistent statements.

[16]The question therefore arises as to what we should do about that failure by the judge to deal with the matter properly. In full submissions which have been put before us by Mr Keith as the Advocate to the Court, for which we are extremely grateful and which, if we may say so, set out impeccably the history of the provisions with which we are concerned, he submits that the judge was clearly wrong as a matter of law in believing that the material could be admitted on the basis that he set out in his ruling. He submits that the material was clearly admissible under section 119 and also under section 114, subject to the fact that the judge neither considered section 114(2) nor the other provisions to which we have referred which provide the safety net for admissibility of what are essentially hearsay statements. He submits, however, that in the context of this case there was really only one answer if one applied those safeguards, and that was that it was appropriate to admit those statements.

[17]We entirely agree. It follows that insofar as the statements were admitted on the wrong basis, that does not affect and cannot affect the safety of this conviction. Accordingly, we dismiss the appeal insofar as it is based upon that ground.

[18]We turn then to the second ground upon which Miss Ryan relies in support of the appeal against conviction, which is to the effect that the judge failed to give to the jury any proper or sufficient help in order to determine the extent to which they could and should rely on that material. We have already set out a significant passage in the summing-up in which the judge did give, in our view, a proper warning to the jury as to the dangers of relying upon that material, and there is no basis upon which we could say that the verdict of the jury was unsafe on the basis that the judge had not properly provided such a warning.

[19]The third basis upon which Miss Ryan seeks to support this appeal against conviction is that, in the course of dealing with the interview and its contents, the judge considered that it was appropriate to give to the jury a Lucas direction on the basis that they might conclude that the appellant S had been lying in relation to the account that he gave to the jury that he did not know what had happened before the victim had been the subject of the headbutt. Miss Ryan submits that, looking at it at least from the perspective of the appellant B, that produced potential unfairness to him in that it might have redounded to his discredit.

[20]The fact is that the judge was perfectly entitled to, although not necessarily in these circumstances bound to, give a Lucas direction in relation to the two inconsistent accounts that the appellant S had apparently given. The direction that he gave was clearly intended to indicate to the jury that the mere fact that they had come to the conclusion that the appellant S had been lying to them, in saying that he did not know what happened before the headbutt, that was not in itself to be taken as justifying a finding of guilt. That is and was a proper direction intended to prevent the mischief which the Lucas direction is intended to prevent, that is the jury concluding that merely because a defendant has lied, that of itself means that he must be guilty. It was not intended to and properly and fairly read does not in fact in any way affect the jury's consideration of the guilt of B. It is inevitable that on occasions there will be directions given by a judge perfectly properly in the course of the summing-up which may have a knock-on effect in relation to another co-defendant, but that is the consequence of joint trials, but in this case, as we say fairly read, we do not consider that the direction that the judge gave was in any way detrimental to the appellant B's case.

[21]It follows that there is nothing in the grounds of appeal which have been argued by Miss Ryan which in any way, in our view, undermines the safety of this conviction. We dismiss the appeal accordingly.