Chivers, R. v [2011] EWCA Crim 1212

[2011] EWCA Crim 1212Case No 201002690 D1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 12 April 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE DAVIS
THE RECORDER OF PRESTON - HHJ ANTHONY RUSSELL QC
(SITTING AS A JUDGE OF THE CACD)
Between
R E G I N ACrownv
Between
JOHN AUSTIN CHIVERS
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 7404 1424(Official Shorthand Writers to the Court)
MISS S ELLIOTT appeared for AppellantMR M CHAMBERS QC appeared for Crown
J U D G M E N T

LORD JUSTICE TOULSON:

This

[1]appeal is against the appellant's conviction for murder on 10 March 2010 at the Cardiff Crown Court before Wyn Williams J. The victim was Paul Jones. He was stabbed to death by the appellant. There were two stab wounds to his chest, each of which penetrated his heart.[2]It happened on the late evening of Monday 3 August 2009 in Columbus close in the town of Barry, where the appellant lived with his partner Dominique Fitzgerald. They had spent most of the day in the pub. Towards the end of the evening they had a disagreement and she left to go home on her own. The appellant was given a lift home by the deceased. They knew each other and had been talking together in the pub. The deceased had another passenger, Painting, who had also been in the pub.[3]When they arrived at Columbus Close, the appellant got out but the deceased did not immediately drive off, for reasons which are immaterial. Shortly afterwards the appellant and Dominique emerged from the house. There was some trouble between them. In the course of it the appellant either pushed or hit her and she fell to the ground, at least to the extent of landing on her knee. Not long afterwards the deceased got out of his car and there was a confrontation between him and the appellant, beginning with words and moving on to blows. There were conflicting accounts about which of them struck the first blow, but a number of independent witnesses said that the deceased struck the first blow.[4]The picture presented by the prosecution evidence was that both men were up for a fight. They were neither of them strangers to violence. Both had a number of convictions for offences of violence, both had been drinking and post mortem analysis showed that the deceased had a high level of cocaine in his blood. In the fight the deceased was knocked or forced to the ground. The two men separated and the deceased went towards the boot of his car to find a tool. Immediately after the fatal stabbing, witnesses who went to the aid of the deceased as he was lying on the ground said that he had a monkey wrench tucked inside the waist of his trousers. Seeing the deceased go to the boot of his car, the appellant disappeared into his house, shortly to emerge bare chested and carrying a large kitchen knife. From that moment on the prosecution evidence was to the effect that the appellant was the aggressor.[5]The witnesses were Painting and various neighbours whose attention was drawn to what was happening, although not all at the same moment and their angles of view were different. There were some inconsistencies, notably about whether the deceased had anything in his hand. Painting described him as having a bar, which it was common ground must have been a reference to the monkey wrench. Other witnesses said that the deceased was empty handed and the prosecution relied in support of their version on the fact that immediately after the incident the monkey wrench was found in the deceased's waistband. There was some suggestion that Painting removed it because he was a friend of the deceased, but the prosecution suggested that it would be unlikely that Painting would have then put the monkey wrench into his waist. There were those differences, but the prosecution witnesses, including neighbours who were not, for the most part, accused of doing anything other than their best to give a true account of events, painted a common picture of the appellant advancing on the deceased with the knife and the deceased backing away from him.[6]The deceased was stabbed twice with the knife and collapsed on the road. There were two areas of heavy blood staining found afterwards. These were in an area where the road was under repair and in the area of a drain a few metres away. The first was the place where the body was found; that was over 30 metres from the front of the appellant's house and over 20 metres from the place where the path leading to the appellant's house met the road. The precise measurements of the other deposited blood were not taken, but from the sketch plan it looks to have been 7 metres or thereabouts towards the appellant's house from the place where the body was found.[7]Before the blood stains were examined by a forensic scientist there had been a light fall of rain but the scientist's evidence was that the appearance of the road was likely to have been much the same at the time of his examination as at the time of the fatality. The judge in summing up to the jury said: "He [that is the scientist] said that there were two substantial deposits of blood and you have seen those in the photographs, and that must have been because the deceased was at those points for longer than where there was simply just a trail of blood. Now, one of those points of course was where he lay in the road, so that is easy, but there must have been another point where he deposited substantial blood into the road. Now, it is a matter for you, but there is eye witness evidence that suggests that immediately after the stabbing he spurted blood and then he walked some distance before collapsing into the road. So that eye witness evidence would appear to be consistent with what Dr Basley found".[8]The appellant's account of what happened was very different. His defence was a combination of self defence and accident. His evidence was that shortly after the episode between Dominique and himself outside their house she had gone inside but, for no apparent reason, the deceased then got out of his car and walked down the path towards the house. He tried to get past the appellant into the house. The appellant stopped him and told him that he was not going in the house. The deceased reacted violently. The appellant tried to calm him down, but without success. After a short physical encounter the deceased went back to his car and the appellant could see that he was going to get something from the boot. Knowing the deceased's violent temperament and that he was on cocaine, the appellant was frightened for Dominique and for her child if the deceased forced his way into the house, which the appellant feared that he had every intention of trying to do. So the appellant went into the kitchen and took the first implement he saw, which was a kitchen knife.[9]His reason for removing his t-shirt had to do with a road accident some years earlier in which he suffered serious injuries, including the amputation of one leg and lasting injury to the other. He was he concerned that if the deceased grabbed his t-shirt he would be liable to lose his balance, so he took it off.[10]When he came out of the house with the knife his intention was purely deterrent; he wanted the deceased to leave. He held the knife in front of him and told the deceased to go, but the deceased was having none of it. The deceased closed on the appellant, swinging what must have been the wheel brace. The appellant jabbed at the deceased to keep him away and that must have been how the deceased received his first stab wound. The deceased, however, continued to fight him, waving the wheel brace. As they grappled they moved backwards and forwards and this rolling fight brought them to the roadside.[11]The second stab wound happened when the appellant stumbled because of his instability, due to his leg amputation. In consequence of the stumble the knife must have gone into the deceased. It was not a deliberate stabbing and the appellant had no intention of causing him death or serious injury. The appellant was not in a temper. He was simply trying to protect Dominique and her child from the deceased. On this account the second stab wound occurred at or about the point where the path met the road.[12]The evidence about where the blood was found was not easy to reconcile with the appellant's account and much more consistent with the version put forward by the on lookers.[13]In addition to leaving to the jury the defences of self defence and accident which the appellant advanced, the judge, after consulting counsel, also left to the jury the possibility of convicting the appellant of manslaughter by reason of provocation, which the appellant's counsel did not ask the jury to consider and indeed was contrary to the appellant's case. The judge gave the jury written directions on the principal matters of law, including provocation, which he had circulated to counsel in advance and which counsel agreed were appropriate.[14]Three grounds of appeal are advanced by Miss Elliott, who did not appear for the appellant at trial. The first ground is that the judge failed to direct the jury properly on provocation. The judge said:
"Because the prosecution must prove the defendant's guilt, it is for the prosecution to make you sure that this was not a case of provocation. The defendant does not have to prove that it was. You may wonder why it is that you are called upon to consider the partial defence of provocation when the defendant has never said that he was provoked. The reason is that experience has shown that sometimes defendants do not put forward partial defences when their primary defence is that they are not guilty of any offence, yet there may be evidence in the case which, if accepted by a jury, would support the partial defence. In those circumstances, fairness demands that the jury consider that possibility."
He continued:
"Provocation has a special legal meaning and you must consider it in the following way. You must first ask yourselves whether the defendant was provoked at all. In law, a person is provoked if he is caused suddenly and temporarily to lose his self control by things that have been said or done to him by the deceased. It must be things which are said or done which causes the loss of control, the defendant cannot simply rely on his own bad temper. Now, in this case there is evidence relating to the deceased's behaviour that night which, if accepted by you, might lead to you to conclude that the deceased's behaviour was capable of causing a sudden loss of self control on the part of the defendant. The evidence to which I refer was given by the defendant but supported, at least in some respects, by other witnesses. It was to the following effect: the deceased walked quickly down the drive of 31 very shortly after the defendant had emerged from his house and demanded to be let into the house for no good reason. He then threw punches at and abused the defendant on the drive of the defendant's home. Having been knocked to the floor by the defendant, the deceased then returned to his car to get a weapon and then proceeded to attack the defendant with it, albeit he did not manage to land a blow. Such conduct could be conduct which was capable of being provoking."
[15]Miss Elliott accepts that this was a fair summary of the conduct which was capable of being regarded as provocative.[16]Having identified the evidence of conduct which a jury could find amounting to provoking conduct, the judge directed them about the need to consider whether the appellant in fact lost his self control, or may have done, and, if he may have done, whether they were sure that a person having the power of self control of an ordinary person of the appellant's sex and age would not have reacted as the appellant did.[17]The judge then turned to the facts. He reminded them of the age, height and weight of the deceased and the appellant. The deceased was aged 41, 5 foot 5 inches tall, and weighed 11 and a half stone; the appellant was aged 30, 6 foot 2 inches tall, and weighed about 14 stone. A little later, the judge referred to the appellant's disability. He said:
"You know that the defendant has part of his leg amputated below the knee, and you know that his other leg was the subject of a significant injury in a road traffic accident. Bear that in mind when you are considering events, in particular in the street. Bear that in mind when you are considering why it was that the defendant's t-shirt was removed at one stage. Those issues must be looked at together."
[18]Complaint is made that the judge should have made specific reference to the appellant's disability as part of his legal direction on provocation, because it was capable of affecting the gravity of the provocation and therefore the jury should have been told to take it into account when assessing the gravity of the provocation.[19]Where provocation consists of violent or threatening behaviour, the threat level is obviously a matter of relevance in considering the partial defence of provocation, just as it is in considering the full defence of self defence. The proportionality of the level of actual or threatened violence to the level of the reaction is relevant when considering whether the reaction was reasonable and therefore lawful or, if it went beyond what was reasonable, whether the reaction was the product of a loss of self control leading the defendant to act as a person of ordinary self control might have done in the same circumstances.[20]The appellant never said that he took a knife because he was not confidant of his ability to stop the deceased from forcing his way into the house because of the appellant's disability. The only link he drew between his disability and his conduct related to his removal of the t-shirt. Nevertheless, just as the prosecution relied on the disparity between the two men in height and build to suggest that the appellant had an in-built advantage if it came to a fight between them, so the defence were entitled to suggest that this was offset, or on his case perhaps more than offset, by the appellant's disability.[21]The judge reminded the jury of these different evidential points when reviewing the facts. There was no more need for him to incorporate the reference to the appellant's disability in his directions on provocation than there was to incorporate it in his direction on self defence, about which there is no complaint. This was not a case where the provocation was directed to his disability, as if for example the deceased had taunted the appellant about it and suggested that the appellant was no match for him. If the judge had, as part of his legal directions, specifically directed the jury to consider the degree to which their respective physical characteristics were relevant to the threat level presented by the deceased, it is hard to see that this would have been to the appellant's advantage.[22]Miss Elliott submitted that there was another respect in which the appellant's disability went to the gravity of the suggested provocation and which required a specific direction. This was the effect which the disability had on the mind of the appellant in the circumstances which occurred. As has already been made plain, the appellant did not in his own evidence suggest that the impairment of his mobility had any effect on his mental state, as distinct from simply his ability to balance himself, but Miss Elliott relies on what he said in one of his police interviews, in particular a passage where he described himself as follows:
"I am paranoid. I have got one leg, I am a paranoid person."
[23]To have reminded the jury specifically of that passage in the defendant's interview, in circumstances where the defence being advanced by the appellant was that he had remained calm throughout, would have been distinctly unhelpful to the appellant's case. When a judge considers that he has to direct a jury on a defence of provocation which is directly contradictory to the case being advanced by the appellant, the judge has to be careful. The more he says to support the idea that the appellant lost his self control, the more such comments will, or are likely to, appear to weaken the primary case being advanced by the appellant. The judge had, as mentioned, discussed his proposed directions with counsel on both sides. In our judgment, no criticism can be made of the way in which he directed the jury on provocation.[24]There is also some unreality about the suggestion that manslaughter by reason of provocation may have been an available verdict for the jury on the facts of this case. One of the problems resulting from the Homicide Act 1957, as it was interpreted, was that judges not infrequently felt bound to leave the issue of provocation to the jury in circumstances where it was quite unrealistic. Complaints about this were part of the cause of amendments to the defence of provocation recently introduced by Parliament. The present case is a good illustration. The appellant's evidence was that he did not lose his self control. There was a good deal of evidence that both the deceased and the appellant were in a temper, but killing in a temper is not a defence. There was no evidence to conclude that the appellant was incapable of controlling his actions. Moreover, it would have been perverse for any jury to conclude that a person of ordinary self control might have acted as the appellant did in coming out of his house armed with a kitchen knife, advancing down the path to the roadway as the deceased backed away, and deliberately stabbing him through the heart.[25]The second ground of appeal concerns the form of direction given by the judge regarding the appellant's previous convictions for offences of dishonesty. At the close of the prosecution case the judge gave permission for the prosecution to put in evidence the previous convictions of the appellant, both for violence and for dishonesty. In relation to the dishonesty convictions, he did so because of the way in which the defendant had attacked certain prosecution witnesses, which went beyond disputing the accuracy of their evidence and included accusations of lying to the court.[26]The appellant originally sought leave to appeal against the judge's decision to admit evidence of the dishonesty convictions but that was refused by the single judge and the application has, sensibly, not been renewed. The criticism we have to consider is not that the judge was wrong to admit the evidence but that he was wrong in his direction about it.[27]The way in which the evidence was introduced following the judge's ruling was that the jury were provided with written admissions, one of which was as follows:
"The defendant has the following relevant convictions for offences of dishonesty ..."
There followed a list of eight convictions over a 20-year period between 1998 and 2008, the latest of them being in May 2008. The convictions were for aggravated vehicle taking, shoplifting, obtaining property by deception, taking a motor vehicle without consent, theft, handling stolen goods, obtaining by deception, and theft. The prosecution relied not on the particular seriousness of those offences, because they were not particularly serious as offences of dishonesty go, but on their number.[28]The judge began his directions about character by dealing in some detail with the evidence about convictions for violence of both the appellant and the deceased. He repeatedly emphasised that they were part of the overall material and that the jury should not exaggerate their importance. He finished his direction about the appellant's previous convictions as follows:
"We also know that the defendant has convictions on seven separate occasions for dishonesty, and if you turn over the page, members of the jury, in the admissions, you will see that at paragraph 15 they span the period 16 March 1998 to 7 May 2008. These convictions demonstrate that the defendant has in the past acted dishonestly. What is their relevance? They are relevant only to the issue of the defendant's credibility. As is obvious, the defendant's credibility is a very important issue in this case. You are entitled to take into account when assessing whether or not you accept the defendant's evidence the fact that he has been convicted on a number of occasions of offences of dishonesty. Put bluntly, these convictions do not assist the defendant when he asks you to believe what he told you about the events of 3 August, but you must be very careful not to jump to the conclusion that the defendant's evidence to you is untruthful simply by reason of these convictions. They are a factor to be taken into account but no more than that, and just as with the convictions for violence in relation to the issue of propensity to commit acts of violence, so you must be careful that you do not exaggerate the importance of these convictions when considering the appellant's credibility."
[29]The criticism made is that this direction highlighted and emphasised the appellant's past convictions for dishonesty, whereas it ought, if anything, to have played down their significance.[30]Miss Elliott has cited the case of Edwards and Chohan [2006] 1 Crim App R 3, [2005] EWCA Crim 1813 in which the Court of Appeal cited with approval a summing up in Chohen's case in which

the judge said:

"You are entitled to consider the evidence of Mr Chohen's previous convictions in the following way. If you think it right you may take into account when deciding whether or not his evidence to you was truthful, because a person with convictions for dishonesty may be less likely to tell the truth, but it does not follow that he is incapable of telling the truth."
[31]We find difficulty in seeing any distinction in substance between that direction and what the judge said in the present case. In both instances the jury were told that they might take into account the past convictions for offences of dishonesty because somebody who has acted dishonestly in the past may be less likely to be reliable in their evidence on another matter, but that the jury should not jump to the conclusion that just because they have been dishonest in the past they are therefore not to be believed on this occasion.[32]The criticism ultimately came down to the judge's use of the single phrase "Put bluntly, these convictions do not assist the defendant when he asks you to believe what he has told you about the events of 3 August". That was a statement of reality but it was immediately tempered by the direction that they must be careful not to jump to the conclusion that he was therefore being untruthful on the present occasion and by the further direction that the jury must be careful not to exaggerate the importance of the convictions.[33]Reading the direction as a whole we can see nothing objectionable in it. The overriding impression given was that, while these convictions were a factor to take into account, the jury should not attach undue significance to them.[34]The final ground of appeal relates to the judge's direction about the inference which they might draw under section 34 of the Criminal Justice and Public Order Act 1994. Although the terms of the section are very well known, we set them out because of the particular argument in the present case. The section provides:
"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, section (2) below applies. (2) Where this subsection applies ... (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper."
[35]The appellant was interviewed on six occasions. In the first four interviews he answered questions put to him. He declined to answer any further questions in the fifth and sixth interviews. The prosecution identified a number of matters on which the appellant relied in his defence and which he had not mentioned in his first four interviews, or obviously in the fifth or sixth interviews. The judge considered three of these to be of sufficient potential significance to merit being put to the jury as matters capable of giving rise to an adverse inference. The most significant of them was the appellant's claim that the second stab wound was accidental and happened when he had stumbled. This had not been mentioned by him in any of his interviews.[36]Dealing with the first four interviews

the judge said:

"The answers he gave in those interviews, you may think, were substantially or generally consistent with the evidence which he gave in court. Like counsel, I am not going to read large chunks of these interviews to you, but I specifically draw to your attention the following passages and ask you to read them carefully when you retire."
He then referred to certain pages in the interviews where the appellant had set out his account of what had happened.

The judge continued:

"Now, I am not suggesting that you ignore the rest of the interviews, but it seems to me that it is in those passages where the defendant gives most details of the account which he has given to you in court and, as I have said, in general terms at least, they are substantially consistent. Because they are substantially consistent you can take that into account in his favour when assessing his credibility, but I have used the words 'substantially consistent' because they are not entirely consistent, as you heard from the submissions of Mr Jones in particular."
The judge then proceeded to identify the three matters not mentioned in those interviews and which the jury might regard as significant omissions of matters which he was later to rely in his evidence.

The judge then moved on to the fifth and sixth interviews, about which he said:

"Now, you also know that the defendant did not answer any questions put in interviews 5 and 6. You may think, although it is a matter for you, that the questions being put in interview 5 in particular were important ones, because that was when the various eye witnesses' versions of events were being put to the defendant. And it is obvious, is it not, that there is a big difference between what some of the eye witnesses say and what the defendant has to say. So this would have been his opportunity to rebut what the eye witnesses were saying to the police and yet he chose to say nothing. He gave evidence to you that he did not answer the questions in his fifth and sixth interviews on the advice of his solicitor. He told you that he wanted to answer the questions, that was his evidence, but he reluctantly accepted the advice which his solicitor gave him. If you accept the evidence that he was so advised it is obviously a very important consideration in deciding whether to draw an adverse inference against the defendant. A man in the position of a defendant facing a potential murder charge you may feel is obviously going to be influenced by what his lawyer tells him, but the fact that you may accept that he was given that advice does not automatically prevent you from drawing an adverse conclusion from his silence."

The judge developed that theme and then continued:

"Also remember, as he himself said at the beginning of the fifth interview, that he had already given a detailed account in the first four interviews. All that said, it is open to you to draw an adverse inference against the defendant in relation to his silence in interviews numbers 5 and 6, however, just as I told you in relation to the failure to mention facts in interviews 1 to 4, you can draw an adverse inference only if it is fair and proper that you should do so and that you are satisfied of three things, first, that when he was interviewed he could reasonably be expected to mention facts in those interviews or answer questions about which he was being asked and about which he now relies; second, that his own explanation in not answering questions or remaining silent is that his answers really would not have stood scrutiny when subjected to proper analysis; and third, that the prosecution case against him is that it is sufficiently strong to call for an answer. Now let me draw this together. The failure to mention facts or the remaining silent is but one part of the case. You can not and should not convict the defendant of any offence simply on the basis of these failures, but if you conclude that they are failures in the way that I have described, you can use them to support the prosecution case."
[38]There is, in our judgment, a defect in that passage. Whereas in relation to interviews 1 to 4 the judge identified the matters relied on by the appellant in his evidence which he had not mentioned in his interviews, when it came to interview 5 he said only:
"There is a big difference between what some of the of the eye witnesses say and what the defendant has to say"
. He did not identify those matters or, more particularly, what matters were being relied on by the appellant in his evidence which he might reasonably have been expected to mention in interview. The feature of reliance is important.[39]In point of fact, the judge would not have been able to do so, for this reason. The evidence before the jury about interview 5 was a written summary. The interviewing officer began by recording that the police had given disclosure of statements made by some of the witnesses in the street and he continued:
"Before I go into what the witnesses have said, following your consultation with [your solicitor] is there anything further you would like to say about this incident?"
The appellant replied:
"Well I, truthfully, I've -- I've -- I feel like I -- I've given you -- give enough explanation of what I'm going to say. It's four tapes it has gone on for now. I have been instructed not to say anything else."
The officer said that it was nevertheless for the appellant to decide whether he wished to answer the questions which he was now going to be given an opportunity of answering. The summary continued and concluded as follows:
"The officer then read to the defendant the accounts of various witnesses (who are not named). The defendant exercises his right to remain silent and replies 'no comment' to all questions."
[40]Quite properly, the jury did not have the witness statements. Nor were they given details of any specific question which was put to the appellant. So they had no means of knowing whether something on which he relied in his evidence was a matter which he could reasonably have said in answer to some question put to him, when they had no knowledge of the form of questions which were put.[41]Mr Chambers QC, for the prosecution, submits that the jury was entitled to infer that what must have been read out in the interview and formed the subject of the questions was what various eye witnesses in fact went on to say in their evidence. That is an incorrect approach. As we have mentioned, quite properly the jury were not supplied with the prosecution witnesses' statements to the police, and it would have been wrong for prosecuting counsel to have said to the jury, "Members of the jury, I would like you to know that all my witnesses have come up to proof". If it would be wrong for him to say that overtly, it would be equally wrong to invite the jury to infer that this must have been the case, to guess what questions based on that evidence had been put to the appellant, and to conclude that matters on which he now relied in his evidence were matters which he ought to have mentioned in answer to some particular question previously put.[42]In his skeleton argument, which he amplified in his oral submissions, Mr Chambers identified three particular matters which he said the appellant should have mentioned in the no comment interviews and only came out with at the trial. Two of these were concessions that evidence given by certain prosecution witnesses was correct. The argument ran that it could be inferred that the appellant was guilty because he had declined to take an earlier opportunity of conceding that facts asserted by the prosecution were correct. There is a serious error in this approach. As a general proposition, a jury cannot draw an inference of guilt from the appellant saying something in evidence which is accepted on all sides as being true, merely because he had not said it on a previous occasion. That would be tantamount to treating mere silence as evidence of guilt, which is not the law. Section 34 is aimed at somebody who produces a positive explanation relied on in evidence when, if truthful, he might have been expected to have mentioned it on a previous occasion. If it is accepted as being truthful, the premise for suspecting that it is a late false attempt to deceive the jury disappears.[43]There is high authority about the correct approach. In Webber [2004] UKHL 1, [2004] 1 WLR 404 Lord Bingham, delivering the opinion of the appellate committee of the House of Lords, said at paragraph 28:
"In R v Wisdom [unreported] 10 December 1999, Court of Appeal, an important point was established. That rarely, if ever, could a section 34 direction be appropriate on failure to mention an admittedly true fact at interview. Since the adverse inference in question is that a matter not mentioned at interview is likely to be untrue, there is no room for the inference if that matter is agreed to be true. This approach was followed by the Court of Appeal correctly in R v Kenneth Jones [2003] EWCA Crim 3080."
[44]In his conclusion, Lord Bingham said, at paragraph 33:
"Since the object of section 34 is to bring the law back into line with common sense, we think it clear that 'fact' should be given a broad and not a narrow or pedantic meaning. The word covers any alleged fact which is in issue and is put forward as part of the defence case. If the defendant advances at trial any pure fact or exculpatory explanation or account which, if it were true, he could reasonably have been expected to advance earlier, section 34 is potentially applicable."
Webber has been followed more recently in this court, for example in Wheeler [2008] EWCA Crim 688.[45]When the appellant in his evidence accepted that the stabbing had happened in the road, as prosecution witnesses asserted, this was not something upon which he was relying to exculpate himself; he was merely accepting something which was, by his acceptance, an agreed fact. It was not a matter which could properly give rise to an inference under section 34.[46]In the circumstances of the present case, we consider that the appellant's solicitors' advice to offer no comment in the fifth interview was well understandable. The appellant had been interviewed at length on 5 August about what happened on the occasion of the killing, and he had been questioned and had answered questions on the following day about his relationship with Dominique, Painting and others. Transcripts of those interviews ran to 120-pages. As the judge said in his summing up, the account given by the appellant accorded with the substance of his evidence, apart from his failure to mention the three matters about which the judge gave a tailored direction.[47]In the fifth interview it appeared that the police were proposing not simply to ask him questions about some particular point of importance on which they had fresh information that could be summarised, or on which the appellant's previous answers had been unclear or contradictory. Rather it appears that they were proposing to question him line by line on the statements of various witnesses. We have not seen a full transcript of the interview but we were told that it ran to a large number of pages. From the prosecution's submissions today, it seems that the real point that the police wanted to ask the appellant about could have been put quite shortly. It was that the police now had a body of evidence that the appellant had advanced towards the deceased, who had retreated hands in the air. However, what transpired was not that they put some question simply designed to elicit his answer to that point. What they embarked on was something much more in the nature of pre-trial cross-examination, albeit that Mr Chambers demurs at the use of the word "cross-examination".[48]The appellant's solicitor's view that his client had said enough to explain his case was a fair view and we do not consider that it would have been fair to draw an adverse inference from the appellant declining to be questioned at that stage on every sentence in every witness statement. We reiterate that we are not here dealing with a case in which the appellant had prevaricated in explaining his case in previous interviews or where the purpose of the further questions was simply to fill some particular gap or to clarify some uncertainty arising from his evidence, or to obtain his comment on some new point which was of such importance that he should have an opportunity to comment on it.[49]However, we do not consider that the wrong direction about the no comment interviews in an otherwise impeccable summing up makes the conviction unsafe. The jury were entitled to draw adverse inferences from the appellant's failure to advance matters on which he later relied in evidence when he had the opportunity to do so, subject to provisos which the judge mentioned.[50]Accordingly, this is not a case in which no section 34 direction should have been given. A section 34 direction was appropriate. The defect was in adding the passage mentioned about the no comment interviews.[51]Miss Elliott submitted that this significantly changed the case against the appellant to his detriment. We are not so persuaded. The case against the appellant was powerful. We do not believe that there is any real possibility that the verdict could have been different if the jury had been told that, whilst they might draw adverse inferences from his failure in the first four interviews to say, for example, anything about the fact that the second stabbing was accidental, they should attach no significance to the fifth and sixth interviews.[52]Four weeks ago the appellant's solicitors requested an adjournment of the present hearing because they wished to investigate the possibility of advancing an entirely new defence, namely diminished responsibility. The request was refused but counsel was informed last week that if the appeal were not allowed on the grounds advanced the court would be prepared to hear argument why the appeal should not be dismissed at this stage but should be adjourned. Counsel was also told that the court would expect to see draft further grounds of appeal based on the material available and would expect there to be a waiver of privilege in respect of the further grounds, because the suggested further grounds involve criticism of the appellant's previous legal team.[53]There is before the court a report dated 12 December 2008 from a psychiatric registrar, Dr Menon, who had assessed the appellant after he was admitted to the University Hospital of Wales following an act of self harm. The report was addressed to the Mental Health Team at the Amy Evans Memorial Hospital. It recorded that the appellant's parents had noted a steady increase in his aggressive behaviour and impulsive overdoses since his road traffic accident in 2003, in which he lost his leg. The report concluded:
"Impression: ? anti-social personality disorder; ? mental and behavioural disorder due to multiple substance misuse; ? organic personality disorder. Given his history of brain injury, impulsive acts of self harm in the form of overdoses, and concerns raised by his parents, I should be grateful if you would kindly consider assessing this gentleman and offering him the necessary support."
[54]It is apparent from the material before the court that the solicitors acting for the appellant at the time of his trial obtained his general practitioner's notes, which included Dr Menon's report and also a file note of Dr Menon dated 12 December 2008 in which he had said that the appellant was:
"Pretty volatile and likely to get into trouble ... he was likely to kick off."
It appears that those then representing the appellant took the view that to introduce evidence of that kind would be deadly to the defence which the appellant was seeking to advance. In that respect, they were plainly right.[55]Miss Elliott's submission was that the lawyers ought to have investigated the case further and given the appellant advice about a possible defence of diminished responsibility being available to him. The court also has now a report by a consultant psychiatrist, Dr Turner, who says that the material in Dr Menon's report gives rise to a distinct possibility that the appellant is and was suffering from mental disorder. It is clear from statements made by the appellant's parents and Dominique that they had been worried for a long time about his mental health and did not consider that this was properly investigated at the time of the trial. However, there is no evidence to suggest that the appellant's mental disorder, such as it may have been, impaired his self perception, that is to say his knowledge of how he was likely to behave and had behaved or his ability to give instructions to his lawyers about what had happened. Indeed, the reference in his interview with the police to him being paranoid showed him having some self awareness.[56]The fact is that he gave to the lawyers acting for him an account of events which, if true, would have resulted in his acquittal, but which the jury rejected as untrue. He now seeks to advance an alternative defence, contrary to the defence which he chose to advance at trial. This is not one of those rare cases in which there is evidence to suggest that a mental disorder which caused a defendant to kill also caused him to be incapable of giving proper instructions to his lawyers. His lawyers cannot be criticised for failing to explore the possibility of him being able to demonstrate to the jury that what he was advancing as his primary defence was quite untrue but that he may have had a partial defence, the proof of which would lie on him.[57]This court has recently emphasised that, while it is always a matter within the court's ultimate discretion whether justice requires it to admit fresh evidence under section 23 of the Criminal Appeal Act 1968, it would be rare to do so where the effect of the new evidence is to try to advance a defence inconsistent with the instructions which he gave to his trial lawyers and where his capacity to give such instructions was unimpaired: Erskine [2009] EWCA Crim 1425. We are not persuaded that it is in the interests of justice that this appeal should be adjourned in light of the material now placed before us.[58]We conclude that the appeal should be dismissed.

Cited in 1 later judgment