Clarke, R. v [2010] EWCA Crim 684

[2010] EWCA Crim 684Case No 200903394/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 11th February 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RIX
MR JUSTICE STADLEN
Venue THE RECORDER OF CARDIFF
(HIS HONOUR JUDGE COOKE QC)
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
SCOTT ALEXANDER CLARKE
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr M Lavers appeared for AppellantMr D Fugallo appeared for Crown
J U D G M E N T

LORD JUSTICE RIX:

[1]After all is said and done the compass of this appeal falls into a narrow area.[2]On 3rd June 2009 in the Crown Court at Kingston-upon-Thames before His Honour Judge Crocker and a jury the appellant, Scott Clarke, was convicted of conspiracy to steal on count 2 and conspiracy to handle stolen goods on count 3. He was acquitted of conspiracy to burgle on count 1.[3]There were six co-defendants, Rodwell, Patterson, Chesseman, Green, Anderson and Guyatt, of whom Rodwell pleaded guilty to the burglary and handling conspiracy counts. Patterson pleaded guilty to the conspiracy to handle count. Green pleaded guilty to the theft and handling conspiracy counts. Guyatt pleaded guilty to the burglary and handling counts and Patterson, having been acquitted of the burglary conspiracy count, was convicted of the conspiracy to steal count in addition to the conspiracy to handle count to which he had pleaded guilty, and Chesseman was convicted of the theft and handling conspiracy counts and Anderson was convicted by a majority of the conspiracy to handle count. The appellant now appeals against conviction by leave of the single judge.[4]The essence of the matter was that the prosecution charged three separate conspiracies. One concerned with the burglaries of domestic homes from which car keys were taken leading to the theft of cars. The second count charged a conspiracy to steal such cars, but included in that conspiracy were a certain number of thefts which went beyond the keys taken in the burglaries which were the subject matter of the conspiracy to burgle count. The third conspiracy charged under count 3 was of the handling of the cars in question under count 2.[5]The prosecution was assisted by the acceptance of various conspiracies involved in the pre-trial pleas of guilty of various of the co-defendants. So far as this appellant was concerned, he remained on the whole in the background of events and, as demonstrated by a reading of the judge's concise summing-up of some complicated facts, the appellant appears to be mentioned only here and there in the summing-up. Thus the judge does not present in his summing-up the circumstantial basis upon which the prosecution sought to put its case against the appellant. The essence of it was that he knew and associated with the co-defendants (although in the case of Patterson it was accepted that he was the very opposite of a friend) but that in the other cases on the whole he was friendly with the co-defendants concerned and that, on various occasions, the dates of which could be mentioned but it is unnecessary to do so, he was seen in the company with one or other of the co-defendants, at a time when one or other or more of them was close to or almost in the process of selling on one of the stolen vehicles to a police agent known as "Tommy". There were about at most five such occasions to which the Crown could point and in respect of some of them at least there was photographic evidence which put the appellant in close vicinity to the sale, sometimes even in close vicinity to the stolen car in question, certainly in association with one or other of the co-defendants concerned. On another occasion rather than photographic evidence there was cell site evidence which could place, inferentially at any rate, the appellant in proximity to both the theft and the on-sale of the car in question.[6]On one occasion, but only one, the appellant was actually videoed, at any rate on the Crown's case it was him, driving one of the stolen vehicles, a four wheeled BMW. There was also evidence in the form of car keys found in the appellant's home upon police search at the time of his arrest, where the car keys in question had been stolen from commercial garage premises albeit the cars to which those keys were associated had not actually been stolen.[7]The appellant did not assist himself by giving evidence at trial. However, he did answer the questions asked of him in five extensive interviews, each of which comprises some 27 or so closely typed pages in their original form. Those interviews were edited in the ordinary way and put before the jury. Even as edited, those interviews amounted to a substantial amount of reading for the jury. They were, of course, taken through the interviews in detail in the course of the prosecution evidence. In those interviews the appellant answered all that was asked of him, albeit it was correctly said by the judge that it would appear from the tone of those interviews that he did not show himself particularly fond of answering questions, and it is also accepted that there was a belligerent tone throughout them. Nevertheless in the absence of any evidence from him at trial, his defence was to be found in those interviews, if it was to be found anywhere. Whatever counsel might submit on his behalf, the basis of those submissions had to be found in his interview responses.[8]How in those circumstances did the judge deal with those interviews and with what amounted to the appellant's defence at trial? That defence, throughout those extensive interviews, was that for all his acquaintanceship and association with some other or indeed most of his co-defendants, nevertheless he had no complicity at any time with any of the three conspiracies alleged. Moreover to the extent that he was asked specific questions about specific dates and specific events, and the on-sale to Tommy of specific cars and such things as having been photographed in association with co-defendants, indeed co-defendants who on those days in question were involved in sales of stolen cars to Tommy, that was nevertheless not a matter of involvement or complicity in the conspiracies or specific sales in question but was just one of those things.[9]We asked a moment ago how did the judge deal with those interviews and the appellant's defence at trial? The judge referred to those interviews at three points of his summing-up. First of all, in the context of his good character directions. Some of the co-defendants had good character and the judge gave them a standard good character direction upon both limbs of credibility and propensity. It was in that context that he came to the appellant. The appellant did not have a good character but his previous offences had nothing at all to do with burglary, theft or handling. The judge pointed that out to the jury, and went so far as to say that they should take the absence of any background in burglary, theft or handling into account "positively in his favour". No complaint could be made about that. The judge then went on immediately to say this:
"And you take into account that he answered the questions which were put to him in interview which, he was interviewed a number of interviews. You've got copies of them. What you make of those answers is entirely a matter for you to decide. All right?"
[10]The judge there told the jury that they were to take into account the answers to his questions. However, he did not tell the jury how they were to take into account his answers, in the context of his bad character but his absence of any previous convictions for burglary, theft or handling. He did not tell them on that occasion what was to be found in the interviews and he simply left it to the jury that what they made of his answers was entirely a matter for them.[11]The next reference, not specifically to the interviews -- they are not mentioned at this next part -- but at any rate to a possible line of defence of the appellant, was in connection with one of the specific incidents, that of 4th June at the Toby Carvery car park where the appellant was seen on an occasion when a little later that evening, but not in his presence, one or more of the stolen cars were sold on to Tommy.

The judge said:

"And therefore the Crown say coincidence? No. Mr Clarke's defence says no, he's only seen at the Toby Carvery getting to the Peugeot and that's it. And having a spliff. Not part of the team, if I can put it like that."
There the judge did condescend to remind the jury of the appellant's defence in respect of that specific occasion but that was the only occasion upon which he did so.[12]Finally,

the judge dealt specifically with the appellant's interviews in the following passage:

"Mr Clarke was interviewed on a number of occasions. He had a solicitor present. Make of that interview what you will. He certainly, you may take this as a comment with which you either agree or disagree, indicated he was not particularly fond of answering questions and did not want to be there and that was it. And indeed indicated at one stage that he didn't drive. Well, you know about the trip to the gym. Basically it was when he was shown photographs that he then said: oh, all right, it might be me. Or whatever. So look with care at that interview because the defence rely upon it. He hasn't given evidence, but the defence say that that in effect is his case. I've already reminded you how you deal with the defendant not giving evidence and I directed you about a defendant not giving you evidence."
[13]That passage, Mr Lavers, in his written submissions and advice, makes certain criticisms. He points out that the judge's only comments about the interviews are prejudicial one. First, there is the comment to the effect that the appellant could be seen in those interviews as being unhappy at answering questions and unhappy at being there. His second prejudicial comment, albeit tied in with a direction on lies, was that Mr Clarke had said at one point that he did not drive. The judge reminded the jury of that. That was connected with the video evidence which the Crown said showed him driving in a car and indeed in a stolen car, the four wheeled BMW. The judge in that context reminded the jury about one of the occasions when still photographs were shown of him ("he was shown photographs") in the near vicinity of that four wheeled BMW. So the judge was in effect tying up the still photographs which had been put to the appellant in interview, and which he conceded might be photographs of him, with the video photograph which showed him driving the car in question. One difficulty about that, however, was that the video itself was not put to the appellant in interview, so he had not accepted that that was in fact him that was driving. "So look with care at that interview, because the defence rely upon it..." (in saying "that interview", the judge meant "those interviews") "... because the defence rely upon it. He hasn't given evidence but the defence say that in effect is his case." The judge does not say what his case is. He merely says that some case, such as it is, might be found upon the say so of the defence in those interviews.[14]In these circumstances Mr Fugallo, who appeared at trial as junior counsel for the Crown and appears again in this appeal, accepts that the judge did not put before the jury in any form what the appellant's defence at trial was. He accepts moreover, that the general jurisprudence in such circumstances can be found in cases such as R v Akhtar (4th October 1999), R v Bagga [2002] EWCA Crim 1049 and R v Curley & Cadwell [2004] EWCA Crim 2395. The matter is summarised in Archbold 2010, at paragraph 7-65, for instance, by reference to Akhtar, where a reference of [2001] Archbold News 2 is given:
"Where the defendant neither gives or calls evidence but has been extensively interviewed, it is of particular importance that the summing-up should at least summarise the main points made by the defendant. Only rarely if ever would a conviction be adjudged safe notwithstanding a failure to sum-up the defence."
In Curly May LJ put the matter thus:
"It needs to be emphasised and emphasised again that it is the plain duty of a judge summing up a criminal case to a jury to put fairly and sufficiently the defence case. Where [an appellant] has not given evidence, and in addition not called any evidence on his behalf, there is no evidence from the witness box in support of that defence other than such evidence as has been gleaned by one way or another from other witnesses who have been called. Where that [appellant] who has not given evidence has been interviewed in detail and has given an account in interview which is relevant to their defence and which so far as it goes contains their defence, that is evidential material in the way that we have described and it is the duty of the judge, in our judgment, in putting the defence case properly and fairly to make such proper and structured reference in summary to the material in the interviews which constitutes the defence case in the criminal trial."
[15]Against that background Mr Fugallo nevertheless submits that this is one of those rare and exceptional cases in which the omission of the judge does not affect the safety of the conviction. He submits that one of the reasons for that is that it was a very strong case; another is that the jury must have been aware in any event of the appellant's defence of no complicity, and thirdly, he submits that there was to be found in the interviews no clear and consistent account by way of defence, and that that was to be distinguished from all the other cases concerned in the relevant line of jurisprudence.[16]We disagree with those submissions. This was in truth an entirely circumstantial case. The appellant appears now and again, but not altogether frequently, in the overall account of matters, as indicated by the judge's summing-up of the evidence. In those circumstances, it is a matter of opinion as to what the strength of that circumstantial evidence may be, and it remains the fact that however much the appellant may have prevaricated, in some of his answers, as to whether he accepted it was him to be seen in certain photographs, and such like, there was nevertheless an entirely clear and consistent line in his lengthy interviews that he had no complicity whatsoever in the various conspiracies alleged and whatever be his association with or even presence at certain possibly incriminating occasions, he remained free of any ultimate complicity in the conspiracies or any sales of stolen motorcars pursuant to such conspiracies.[17]Mr Fugallo is entitled to point to the care which the jury brought to their deliberations, in acquitting the appellant on the first count, conspiracy to burgle, but for all that that may be said, we do not consider that this case can be treated as an exceptional case in which a conviction can be held to be safe in circumstances where the jury have been given no assistance whatsoever with a defendant's defence.[18]For these reasons we consider that we are required to allow this appeal. All other questions fall away. Where do we go from here Mr Fugallo?[19]MR FUGALLO: My Lord, the Crown does not seek a retrial.

LORD JUSTICE RIX: So be it. All right. The appeal is allowed on both counts 2 and 3.