GM, R. v [2016] EWCA Crim 565

[2016] EWCA Crim 565

Case No 201503014/B5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday, 18th March 2016

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE DAVIS

MR JUSTICE TURNER

MRS JUSTICE ELISABETH LAING DBE

R E G I N A

REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER

SECTION 9 OF THE CRIMINAL APPEAL ACT 1995

Computer Aided Transcript of the Stenograph Notes of

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Mr A Rose appeared on behalf of the Appellant

Mr P Grieves-Smith appeared on behalf of the Crown

J U D G M E N T (Approved)

Between

GMDefendant

RCrown

LORD JUSTICE DAVIS:

[1]This matter comes by way of appeal to this court on a Reference by the Criminal Cases Review Commission.

[2]The appeal relates to the conviction of the appellant as long ago as 18th August 2011, after trial in the Crown Court at Croydon before His Honour Judge Flahive and a jury. The jury convicted the appellant of a count of robbery. He had previously pleaded guilty to an attempt count of handling stolen goods. Subsequently he was sentenced to a term of 8 years' detention in a young offender institution for the robbery count and there were also other ancillary counts relating to sentence.

[3]There was a co-accused, a man called KS, who also was convicted of the robbery count and he received a sentence of 6 years' detention in a young offender institution, he being somewhat younger than the appellant. He was at the time aged 20.

[4]The background facts can be shortly stated and are these. At around 23.20 on the night of 11th March 2011, a woman aged 64 was parking her Volkswagen Polo in her garage at an address in South Croydon. At that stage a man came up and pulled her from her car and held her down whilst a second man then got into the car and drove her car away from her garage. The car contained the complainant's walking sticks, handbag, house keys, mobile telephone, £55 in cash as well as a purse containing bank and store cards. The police were notified of the incident at around 23.20.

[5]At 12.10 on that same night, that is to say some 50 minutes or so after the robbery, a police officer saw the appellant, his co-accused KS and man named O parked in the complainant's car at an address in Copse View on an estate nearby, which was near to O's home address. As police approached all three men who were in the car made off. One of the police officers was subsequently to say that it was the appellant who had been in the driving seat, although the appellant was to dispute that and say that he had been sitting in the back of the car. The appellant himself ran away through gardens and hid in a garage but was ultimately found with the assistance of a police dog and arrested at 00.45 hours on the early hours of that morning and the other two men were also arrested. The number plate of the complainant's car had been altered by the use of some tape.

[6]In the possession of KS was found the complainant's mobile phone and there was also found on him some £70 in cash. The appellant himself but had a very small amount of cash on his person when arrested.

[7]The appellant and the co-accused KS were taken to the police station and interviewed. Each of them separately had a solicitor in attendance. Each of them answered "no comment" to all questions in interview. O provided an alibi defence at the time and ultimately was not charged with any offence.

[8]So far as the complainant herself was concerned she had not been able to identify the robbers, apart from giving a very broad description, so no identification procedure was conducted. The general description given by the complainant included references to her understanding of their age, height, ethnicity and clothing.

[9]It was the prosecution case that it was the appellant and KS who had been the two men who had committed the robbery. The prosecution relied upon the appellant matching the general description provided, his being seen, on the prosecution evidence, in the driver's seat of the car shortly after the robbery had occurred, both in terms of distance and time; the co-accused KS's possession of the complainant's mobile phone on arrest and furthermore the prosecution relied upon the failure of the appellant and KS to answer questions in interview.

[10]The defence case was essentially one of alibi. It was said that the appellant, the co-accused KS and O had bought the car from a man named "Marcus" for £300 and they did so knowing or believing it to be stolen but had not, as they said, played no part in any robbery. The appellant was also to say that he had decamped from the rear of the car when the police came up and had not been in the driver's seat as the police were to say. He was further to say in evidence that he had answered "no comment" in interview on the advice of his solicitor.

[11]More specifically the appellant gave evidence that in the evening of 11th March 2011 he had been at home with his family with whom he lived. After having dinner he had gone to his bedroom and watched television and listened to music. Later on in that evening O had contacted him by mobile phone and had informed him that a man called Marcus had a car for sale. Marcus had been a man from the local area who bought and sold cars. According to the appellant he had wanted to learn to drive and had £100 in cash, albeit he did not have any form of driving licence. His evidence was to the effect that he had left home at around 23.30 hours that evening, telling his mother he was going to a friend's house. He said that he also contacted his co-accused KS and asked him to come to meet O and to bring money to buy a car. He said that he knew the car was likely to be stolen. According to him, he walked from his house to the local bus stop, waited a short while for a bus and then caught the bus up to near Copse View where O lived and then walked the remaining period to where the car was. There he had met Marcus, O and another unknown man. The unknown man and Marcus were both black and had both been wearing black jackets. Marcus was taller than the appellant. Then KS had arrived by taxi and they had bought the care for £300 and Marcus had then left. He had sat in the rear of the car behind a driver's seat, KS was in the passenger seat and O was in the driver's seat. He had run away when the police had arrived as he suspected the car was stolen and he knew there was cannabis in the car. He said that he had answered "no comment" in interview on advice of his solicitor and also said that he had been scared.

[12]The appellant's mother gave evidence that she had told the appellant to turn his music down at around 23.00 hours as that was the time she would normally tell him to do so on a Friday. It may be noted that the mother's witness statement had only been given some two days before the trial started.

[13]KS also gave an alibi defence. He stated that he been run by the appellant at around 23.30 hours, about a car for sale and had gone in a taxi to meet the appellant where he also met Marcus and the unknown black man and O. He gave evidence broadly to the same effect as the appellant. As to the mobile phone found upon him, he said that he found it on the floor of the car and that it had been "natural instinct" to put it into his pocket. KS also called his girlfriend to lend some support to his alibi defence.

[14]After he was convicted this appellant sought leave to appeal against conviction. That application was rejected by the single judge on the papers. It appears that ground then being advanced was that the judge should have withdrawn the case from the jury. The application having been rejected by the single judge it was not renewed and the appeal lapsed.

[15]There were perhaps three particularly noticeable features of this case. First, the appellant's defence was inextricably linked with the defence of the co-accused KS. Their mutual accounts were to the effect that the appellant, after being run by O, had contacted KS at around 11.30 pm. KS accepted in the course of his evidence that it was very unusual for the appellant to have rung him about a car at such time. They were then both available to go and did go to the venue near to where O's home was. Indeed, the close link between the two defence cases was such that the judge, after prior discussion with counsel and with the agreement of trial counsel, suggested to the jury, after giving the conventional separate treatment direction, the jury may well think this was an appropriate case if they were to convict, to convict both and if they were to acquit to acquit both.

[16]The second point to note is that the defence of alibi had never been raised in interview. Further, it had never been raised as such in the defence statement. Indeed, as we have said, the mother only provided a witness statement some 2 days before the trial.

[17]The third point to note is that the Crown case, although this is a point for some reason not much adverted to in the Criminal Cases Review Commission report was heavily reliant on the recent possession of the car stolen at around 11.20. The car itself, on the map provided to us and as produced at trial, was some 3.7 kilometres away from the venue of the robbery.

[18]The appellant, according to him, had left his home at around 11.30. He had then walked to the bus stop, waited a few minutes for the bus, caught the bus and then travelled some 2.2 kilometres to the venue of the car near O's house. Then the purchase had to be arranged with the other men allegedly present and after that, on his evidence, the three had sat in a car for a few minutes preparing to smoke cannabis.

[19]This, on the defence case, was an extremely tight time frame indeed if he truly had not had been involved the initial robbery. The same point could be made with regard to the co-accused KS, who indeed had to travel some 7.85 kilometres from KS's home to get to the venue near O's house. It was not wholly understandable in such circumstance that the Crown would place much emphasis on the recent possession of the car and the time frames involved on the defence case. It was suggested that these were manifestly and inherently implausible.

[20]The present grounds of appeal, based on what is said in the report of the Criminal Cases Review Commission, are based entirely on asserted misdirections in the summing-up. It may be noted that no criticisms of the summing-up had been raised in the initial grounds of appeal lodged at the time back in 2012. The first point raised is by reference to the adverse inference direction given by the judge pursuant to section 34 of the Criminal Justice and Public Order Act 1994. It had rightly been common ground at trial that such a direction should properly be given. But what is now said is that in the course of his very detailed instructions to the jury on this aspect of the matter the judge had omitted to say to the jury that they should not convict "wholly or mainly" on the strength of adverse inferences derived from any failure to mention facts in interview later relied upon at trial. It is asserted by Mr Rose, appearing on behalf of the appellant, that this absolutely fundamental to any section 34 direction and there is authority which indicates that such a direction should be given and as indeed is covered by the specimen directions contained in the Crown Court Bench Book.

[21]It is correct that the judge had not used this language in the course of giving his detailed section 34 direction to the jury. But, in our view, certainly in the context of this summing-up, read as a whole, this omission was not material. The judge had constantly reminded the jury during the summing-up that they had to consider the case as a whole. He never, at any stage, suggested, either explicitly or implicitly that the failure to answer questions in interview which was capable in itself of being conclusive of guilt; indeed, the whole tenor of his summing-up is precisely to the contrary. Indeed, in the course of his actual section 34 directions to the jury the judge said that if the jury had been made sure that the defendant had no account which he could give in interview, which would stand up to scrutiny, then that was "something you could hold against" the defendant whose case they were considering. That is entirely consistent with the judge's overall approach that failure to answer questions in interview were not capable of being in effect conclusive or essentially conclusive of guilt.

[22]Yet further towards the outset of his summing-up

the judge had said this:

"But what is very important, and you must understand it, is that when it comes to the evidence you have to analyse it with care. It is only if you are satisfied that the explanation that you have been given as to how the defendants came to be in possession of the car was untrue that you could then take that into account against them, as support for the prosecution's case."

The judge then went on to list the various matters arising from the defence case which the jury would be required to consider, he making it clear therefore that rejection of any of the those aspects were matters to be taken into account as lending support to the prosecution case. Again that is wholly inconsistent with the judge inviting the jury to think that rejection of any such matters would either wholly or mainly be conclusive as to guilt. Overall there is nothing in this particular point.

[23]The other point with regard to the judge's section 34 direction, at least as advanced in the report of the Criminal Cases Review Commission and initially, at least, adopted on this appeal by Mr Rose, is even more nebulous. What is said is that the judge had failed to put before the jury, for their consideration, one obvious explanation as to why the appellant or indeed KS should make no answer in interview, namely a desire at the time not to admit involvement in the criminal offence of handling which the defence case would necessarily require.

[24]In our view, that is a thoroughly bad point. The appellant, as had KS, had given in evidence their explanation as to why they had made no answer in interview, notably reliance on legal advice from their solicitor. The solicitors were not in fact called to give evidence. To advance as a yet further explanation in a summing-up a desire on the part of the appellant or, as the case may be KS, not to incriminate himself for handling, was not an explanation that either the appellant or KS had ever himself given in the course of the evidence. For those reasons, counsel doubtless at trial had not even sought to advance the point. In such circumstances, it would have been positively wrong for the judge, in effect of his own motion, to have advanced this new point in the summing-up. It would have had no evidential basis and moreover to advance this new point by way of alternative explanation may only have served to undermine, in the jury's eyes, the explanation which had been given, that is to say reliance on legal advice. Overall, we can see no material defect in the judge's section 34 directions when one reads this summing-up as a whole.

[25]The second point advanced is also of no real substance. In giving the usual alibi direction, in the course of the summing-up, the judge rightly reminded the jury that it was for the prosecution to disprove the defence and not for the defence to prove it. The complaint however is that the judge did not go on to give the conventional second limb of the alibi direction, that is to say, that even if the jury were sure that the alibi defence was to be rejected it did not mean that the defendant must necessarily be guilty and that, for example, it might have been advanced as a defence to bolster what in any event was a true defence. It is correct that the judge, in the course of his summing-up, gave no such direction by reference to the second limb of the conventional alibi direction.

[26]It has to be said that it is very difficult in this case to see how there could have been some other defence independent of the defence of alibi and given the particular circumstances. But be that as it may, the other aspects of the summing-up make this admission, in our judgment, one of no materiality. We say that not least because of the passage in the summing-up which we have already read out. It is quite evident that the jury knew they had to consider the case and the evidence as a whole and nothing in the summing-up would have led the jury to think that rejection of the alibi defence would of itself mean that they must conclude that the appellant was guilty. On the contrary, the various and cumulative strands of the prosecution argument were fully set out in the course of the summing-up and the jury were invited to consider all such strands.

[27]It is a point of comment that neither of the two experienced defence counsel appearing for each defendant at trial make any complaint to the judge at the time about the summing-up. Nor, as we have said, were these points advanced on the initial appeal. That, in our view, shows an appreciation of the realities.

[28]There may of course be cases where errors in a section 34 direction or an alibi direction can vitiate a conviction. But that is by no means always or necessarily so, and in the present case these omissions, such as they were, were demonstrably not material. It is particularly unsatisfactory that these points have been raised so late in the day and not least when this case of the appellant, as was accepted at trial, was intrinsically linked to that of the co-accused, KS. In that regard Mr Rose frankly acknowledged that his case would have had to be that if this conviction was safe with regard to this appellant, it may also not be safe with regard to KS, although he did of course and rightly so accept that there were other matters relating to KS, for example the possession of a mobile phone, which did not apply to this appellant.

[29]Overall, we do express some degree of surprise that the Criminal Cases Review Commission saw fit to refer this matter to this court. But be that as it may, we dismiss this appeal. Neither point is a point of substance and taken together and cumulatively they acquire no greater substance than they have when taken individually. We are satisfied that the conviction is safe.