T v DIRECTOR OF PUBLIC PROSECUTIONS [2007] EWHC 1793 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
[2007] EWHC 1793 (Admin)Case No CO/2155/2007Venue Royal Courts of Justice, Strand, London WC2
Between
TAppellantDIRECTOR OF PUBLIC PROSECUTIONSRespondent
Before
Lord Justice HughesMr Justice TreacyMR RAMSAY QUAIFE (instructed by Messrs Howell Hylton, Camborne TR14 8EX) appeared on behalf of the AppellantMR LEE BREMRIDGE (instructed by Director of Public Prosecutions) appeared on behalf of the RespondentDate 10 July 2007

LORD JUSTICE HUGHES:

[1]I will ask Mr Justice Treacy to give the first judgment.[2]MR JUSTICE TREACY: This is an appeal by way of case stated by a young man who shall be referred to as "T". He is now 15 years of age. He was 13 years of age at the time of the offence alleged against him. That offence is alleged to have been committed on 28th June 2005. He was convicted of using violence to secure entry to premises, contrary to section 6 of the Criminal Law Act 1977 , by the West Cornwall Justices sitting at Falmouth Youth Court on 17th March 2006.[3]As I have said, the offence occurred in June 2005. On 20th September 2005 the police interviewed T. When he was interviewed he had a solicitor present and also his father. On the advice of his solicitor, T, through the solicitor, had read into the interview record a pre-prepared statement. Thereafter, T declined to answer questions.[4]The allegation against T was as follows. On 28th June he, together with another teenage youth and two others, went to a house in Falmouth to visit a teenage girl. That girl was alone in her parents' house. She refused to let the group in, according to her. F, one of the other young men, persuaded her to come to the front door and began to talk to her. He then started pushing the door, despite being told not to do so by the young girl. Her allegation was that T had then come up behind F and had helped him to enter the premises by pushing F through the front door. Her allegation was that the pair of them, having forced the door in that way, then entered the house and ran past her up the stairs.[5]When T was being interviewed, he put forward the following account in his pre-prepared statement:
"I have been informed that I am suspected of ... committing a burglary at [J's] house on 28 June 2005. I have been to [J's] with [F], he went to get a fag off her. At first she didn't let him then she then let him in. [F], [S] and me went into the house, [S2] remained outside on the wall. I did not go into the house uninvited, I did not steal anything, I left after a short time."
[6]T gave evidence at his trial. His evidence is recorded in the case stated as follows. In chief:
"Been to [J's] house lots of times and been upstairs in her room listening to music. I drink on the odd occasion, don't drink spirits, I would have a can. On 28.6.05 [F] led us to [J's] house. [F] was shouting [J's] name to her at her home. We walked to front door and [F] tried to push his way in. I didn't try and help him to get inside. I was still standing on the steps when [F] got in and [J] said you might as well come in. I was inside 2-3 minutes I didn't touch any bottles at all. I didn't talk to [J] in kitchen but at bottom of stairs."
[7]In cross-examination he said this, according to the case:
"I have been allowed in before. [J] didn't want [F] in. I was half metre away from [F] not with him. I didn't use force [F] did. I didn't touch the door."
[8]There was also re-examination and questions from the Bench, but they do not take matters any further for our purposes.[9]When T was cross-examined and, at the end of his evidence, when he was asked some questions by the Bench, no question or enquiry was put to him on the basis that he had relied on any fact in giving evidence which he had not mentioned when he was questioned at the police station.[10]The justices made the following findings of fact, having heard the evidence:(a) The parties knew each other.(b) [T] entered the house.(c) [F] entered first and pushed the door open against the will of [J].(d) They had entered the house with permission in the past.(e) [F] asked [J] if he could come in — answer 'No'.(f) We believe [J] to be a credible witness.(g) There are inconsistencies in [T's] evidence.(h) We are satisfied that [J] did not invite anyone into the house and that [T] pushed [F] through the door to gain entry.(i) We drew some inference from the 'no comment' interview."[11]The question which is posed by the justices for this court is as follows:
"Were we entitled in the circumstances to draw an adverse inference from the appellant's failure to answer any questions during his interview?"
[12]This question is, of course, a reference to section 34 of the Criminal Justice and Public Order Act 1994 . The relevant provisions are as follows. Section 34(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 ... 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, ... subsection (2) below applies."
[13]Section 34(2) provides as follows, where material:
"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."
[14]At the close of the evidence at the trial the clerk to the justices invited the parties to address the court as to whether a section 34 inference could be drawn. The Crown said that such an inference could be drawn, but the prosecutor failed to identify any new fact relied on. The defence submitted that this was not a case in which an inference should be drawn.[15]The clerk then referred the justices to the well-known authority of R v Argent [1997] 2 Cr App R 27 . That case sets out six conditions which must be met before section 34 can operate. The sixth condition is the most relevant in this case. It provides as follows:
"The fact that the defendant failed to mention had to be one which, in the circumstances existing at the time of the interview, he could reasonably have been expected to mention when so questioned."
[16]In the case stated the justices expand on the terse statement which I have quoted earlier from their findings, namely:
"We drew some inference from the 'no comment' interview."
[17]The expanded account provided by the justices of their deliberations is in these terms:
"Despite his solicitor's oral statement at the commencement of the interview, the appellant did not answer, when given the opportunity, specific questions. In particular, questions on the use of force and whether consent was given to enter the property. The appellant refused to answer any question put to him during the interview. We concluded the appellant had been given opportunities to answer specific questions pertaining to the offence and that these questions were not sufficiently addressed at his interview. Namely, whether permission was given to enter the premises and whether violence was used to secure entry. He refused to answer those questions. In the absence of any explanation, the appellant could reasonably have been expected to mention the facts on which he now relies. That the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny. The prosecution case against him was so strong that it clearly called for an answer."
[18]Mr Quaife, who has represented the appellant before us today, submits that the justices were not entitled to make such an inference without, firstly, identifying the facts relied upon by the appellant at trial which were not mentioned at interview; secondly, putting to the appellant the alleged facts that he was relying on which he was said to have failed to have mentioned at interview; thirdly, allowing the appellant an opportunity to explain why he chose to give a prepared statement; and, fourthly, considering such explanations as he put forward.[19]Mr Bremridge for the respondent has accepted before us today that an adverse inference should not have been drawn. In my judgment he was correct to make that concession. In my judgment, even taking account of the justices' amplified reasons, there appears to have been some confusion on their part as to the correct approach to be taken if section 34 is to apply. The justices' initial finding points to the conclusion that they drew the inference from the fact that the appellant had made no comment in interview, as opposed to the fact that he had mentioned in evidence some fact not previously relied on.[20]True it was that the appellant had made no comment in interview, but that was after providing an account by means of the pre-prepared statement, and the exercise to be carried out was a comparison between what he had put forward in that prepared statement with his evidence at trial. The justices' initial reasons do not appear to have performed that exercise. The justices' amplified reasons seem to me again to concentrate on the failure to answer questions at interview. There is no analysis of the facts upon which T relied at trial which he could reasonably have been expected to mention in order for the adverse inference to be drawn. Moreover, there was a failure to explore with T, whilst he was giving evidence, the reason why he was now putting forward any fresh fact apparently relied on.[21]The Crown when invited to make submissions at the end of the evidence failed at that stage to identify to the justices any fresh fact relied on, and the justices' reasoning fails to show that they addressed their minds to the particular situation of a 13-year-old boy, acting on legal advice, providing a prepared account and thereafter making no comment, and then asking themselves the question whether that defendant could reasonably have been expected to mention any particular matter which he relied on later. There has been, regrettably, a misunderstanding by the justices, it seems me. They have focused on the fact that the appellant made no response to specific questions put to him. They have not carried out the exercise which section 34 requires them to perform.[22]In those circumstances, I am satisfied that the answer to the question posed in the case stated must be "no".[23]The case was one essentially of the girl, J's, evidence against T's. The justices in coming to their conclusion wrongly took account of an adverse inference against T in making their assessment of the conflict between the two key witnesses. Plainly, therefore, the adverse inference had a material bearing on the decision which was made. Mr Bremridge for the respondent has not sought to argue otherwise.[24]In those circumstances, I would quash the finding of guilt. I would not order a retrial, having regard to the lapse of time, the age of T and the nature of the offence.

LORD JUSTICE HUGHES: I agree. I would just add two things, in the hope that they may be of some service for the future.

[26]First, it seems to me that courts are at risk of falling into the error into which this court fell if in a potential section 34 case they simply ask themselves the question: are we entitled to draw an adverse inference? What the justices should, I would suggest, invariably do is to ask these three questions:(1) Has the defendant relied in his defence on a fact which he could reasonably have been expected to mention in his interview, but did not? If so, what is it?(2) What is his explanation for not having mentioned it?(3) If that explanation is not a reasonable one, is the proper inference to be drawn that he is guilty? It seems to me that if the justices had approached this case by addressing those questions successively, they would not have fallen into the error that they did.[27]Second, the solicitor who had advised this young man in the police interview also conducted his defence. That is likely to happen and there is nothing wrong with it, but a solicitor who proposes to do so does have to consider the often delicate question of whether he may become a witness of fact.[28]This solicitor, in an affidavit provided to this court, asserts that a pre-trial review form had indicated that so far as both parties were concerned there was no question of law in the case and it was a question of fact only. He says that as a result of that he decided that he could properly represent the defendant at trial without being a potential witness as to what advice was given at the police station.[29]I should just like to add that it must not be thought that it is possible to rely on such a pre-trial review form in making the decision which solicitors in this position have to make. The question of whether section 34 arises or not can only very rarely be foreseen until the defence case has been made. In every case solicitors have necessarily to judge for themselves, first of all, whether an issue under section 34 is likely to arise and, secondly, if it does, whether they are likely to have to become a witness of fact. In making that decision, they will of course have the advantage, such as it is, of knowing what the defence proof of evidence indicates. All that I want to make clear is that that decision is one which must be made in each case by a solicitor in such a situation and is one which cannot be hung on a pre-trial review form.[30]Yes, thank you both very much indeed.[31]MR QUAIFE: Could I just trouble the court as to costs. I do not know if Master T has any expenses to claim, but if he does can I at least make an application this morning for a defendant's costs order, pursuant to section 16 of the Prosecution of Offences Act. It is in Archbold at page 106.

LORD JUSTICE HUGHES: That is a central funds order, is it not?

[33]MR QUAIFE: Yes.

LORD JUSTICE HUGHES: That is right, is it not, Mr Bremridge?

[35]MR BREMRIDGE: Yes, it is a central funds issue, although the question is posed by the justices.

LORD JUSTICE HUGHES: Yes. A defendant's costs order Mr Quaife.

[37]MR QUAIFE: Thank you very much.

LORD JUSTICE HUGHES: Thank you both for your help.

Cited in 1 later judgment