Case No: 2000/1163/Y5 
Neutral Citation Number: [2001] EWCA Crim 486
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 6th March 2001

B e f o r e :

LORD JUSTICE PILL
MR JUSTICE McCOMBE
And
HIS HONOUR JUDGE METTYEAR

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	R		
	
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Shakeel KHAN		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Simon Connolly appeared for the Crown

Gordon Ross (Miss S. Gabay) appeared for the Appellant
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Judgment

PILL LJ:

1.	On 31 January 2000 at the Central Criminal Court before Mr Recorder Stewart QC and a jury Shakeel Khan was convicted of wounding with intent to do grievous bodily harm (Count 1) and doing an act tending to pervert the course of justice (Count 2). He was sentenced to three years imprisonment on Count 1 and 18 months imprisonment consecutive on Count 2 so that the total sentence was 4½ years imprisonment. Shakeel Khan appeals against conviction by leave of the single judge.

2.	Mr Terry Lowe was the appellant’s tenant at 56 Spring Grove Road, Hounslow. Occupation commenced in October 1998. Lowe said that the tenancy agreement was signed at the premises and that no witnesses were present. The appellant maintained that it had been signed at his home in the presence of Mr Plezaks. On 11 February 1999 the appellant visited the premises with his handyman Mr Fife. There was a violent incident involving the appellant and Lowe. The charge in Count 1 is based on an alleged attack by the appellant. He claimed that he was defending himself. The charge in Count 2 arises out of conversations and phone calls between the appellant and Lowe after 11 February. It was alleged that the appellant attempted to persuade Lowe to go to the police and drop the case on Count 1. The appellant claimed that Lowe tried to obtain substantial sums of money from him.

3.	Lowe gave evidence of a serious attack upon him by the appellant on 11 February. It included a head butt, many kicks and several threats to kill. Fife was blocking the house door. The appellant produced a knife and stabbed Lowe on the head and left side. Lowe said that the appellant told him to get out within a week. “If you don’t leave I will burn your things and poison your food”. Evidence was also given of the alleged attempts to persuade Lowe to drop the case.

4.	Malsri Fernando, Lowe’s partner, gave evidence and agreed that complaints had been made to her about her conduct as a tenant. Medical evidence was called of the condition of Lowe after the incident on 11 February. He had a fractured nose which was manipulated under general anaesthetic. There was very severe facial bruising, a cut above the left eye, tenderness and cuts on the hands. The cuts could have been caused by a knife or by a punch by someone wearing a ring.

5.	When giving evidence, the appellant referred to complaints from other tenants and his decision to serve a notice to quit on 11 February. When he handed the notice to quit to Lowe, Lowe punched him in the stomach and tried to knee him in the groin. He said that Lowe went mad; he was a drunken wild man and started punching and kicking. He admitted punching Lowe on the face with both hands and that he was wearing a ring. The appellant said that he suffered a nose bleed, bleeding scratches around the face and an injury to the groin. Because his wife was a nurse he did not go to the doctor. He said that in early March Lowe telephoned him saying that he wanted £12,000. During a later telephone conversation, he claimed that Lowe said that it was the last chance; he had to give him the money or Lowe would tell the police the appellant was bothering him. When cross-examined, the appellant said he was not trying to cause Lowe an excessive amount of injury, he was just trying to control him. He did not go to the police but wanted to resolve matters between them without police intervention.

6.	Fife gave evidence substantially supporting the appellant’s account of the incident on 11 February. Lowe was the aggressor. On a later occasion, he heard Lowe’s demand for £12,000.

7.	The appellant’s wife is a community psychiatric nursing sister. She said that her husband came home on 11 February in a state of shock with blood on his face, scratches and considerable bruising. He was crouched over in pain. Another tenant of the house gave evidence of complaints to Lowe about noise, music, shouting and cooking smells. A former police surgeon gave evidence for the defence. From examination of the medical notes and photographs, he expressed the opinion that the injury to Lowe’s right eye could have been caused by a single blow as could the fracture of the nose. He also expressed the opinion that the cut on the head was not a stab wound and the cuts on the hands were not consistent with injury by a knife. The appellant denied that a knife was used. Lowe described the knife and the relevance of the issue as to where the tenancy was signed was that, if it was signed at the appellant’s house, Lowe could have seen the knife then. 

8.	The appeal is based upon alleged defects in the summing-up. First, it is submitted by Mr Ross that the Recorder made inappropriate reference to the failure of the defence to call witnesses and, second, and linked with a comment in relation to the failure to call a solicitor, that inappropriate comments were made upon the appellant’s failure when interviewed by the police to mention Lowe’s alleged attempt to blackmail him.

9.	In R v Gallagher (1974) 59 Crim App R 239, the trial judge commented adversely on the defendant’s failure to call witnesses the potential relevance of whose evidence was not known to the prosecution until the defendant himself gave evidence. Giving the judgment of this Court, Megaw LJ considered the earlier cases of Bryant and Dickson (1946) 31 Cr App R 146 and Wheeler (1967) 52 Cr App R 28 and continued:

“In the judgment of this Court, neither of these cases, in both of which the observations were obiter dicta, are relevant in the present case, because there is a material distinction in that the potential witnesses in the present case in respect of whom the judge made observations were persons in respect of whom the prosecution had no possible means of knowing that it was going to be suggested that they had any relevant evidence to give until the appellant himself came to give evidence at the trial. That in itself would be sufficient to distinguish the present case from those cases, and would be sufficient, in the view of this Court, to indicate that any particular formula which might be recommended in either of those two cases was not an appropriate formula in the different circumstances of the present case.

Having referred to the decision in Wheeler (supra), this Court should make it clear that in its view, and in the view of each member of it, it would not be right to say, as a matter of  principle, if that was what was indeed intended in the judgment in Wheeler (supra), that it is unfortunate and unhelpful that a judge should tell the jury that the absence of a potential witness for the defence is a matter which the jury are entitled to take into account. It is possible for a judge in an appropriate case to tell the jury that they are entitled to take into account the fact that a potential witness who has not been called has not indeed been called. It is of course clear that in making any such comment, the judge must exercise care, just as a judge has got to exercise care when he thinks it right to make a comment in respect of the failure of a defendant himself to give evidence at the trial. But, it would be wrong and inappropriate to seek to tie the hands of the trial judge by laying down or attempting to lay down any particular formulae, because it must depend essentially upon the infinitely varying facts of the different cases. In the view of this Court, the formulae, if that is the right word, which were suggested in Bryant and Dickson (supra) and Wheeler (supra) were formulae which were applicable to the particular facts of those particular cases.”

10.	Having considered the then analogous situation of the failure of an accused person to give evidence, Megaw LJ continued:

“In this sort of matter great care must be taken to avoid the possibility that injustice may be done by leaving the jury under the impression that the failure to call a particular witness is something of importance, where in fact there may have been some perfectly good and valid reason why a witness should not be called, which would not bear upon the jury’s decision. But, it is impossible to take the view that the failure to call a witness cannot in a proper case be a matter to be taken into account by the jury as a part of the whole of the material upon which they have to decide.

The criticism that has been made of the passage already read in the summing-up of the learned judge in this case is that the judge appeared to go beyond what is permissible when he told the jury that the prosecution had asked them to ‘throw into the scales’ the fact that apparently no effort had been made to find Ray or that none of the ladies had given evidence. That, it is said, would be an invitation to the jury to speculate, and to speculate in a way which might be unfair to the appellant. It is said that the judge ought to have followed that up by saying: ‘You must not speculate as to the reasons why Mr Ray has not been traced or why none of these three ladies have been called.’

In the view of this Court, that criticism is not one which can be accepted as valid in this case. The comment made was in all the circumstances entirely fair, and entirely appropriate and contains nothing which is unfair or inconsistent with the duty of the judge as the law stands.”

11.	In R v Couzens and Frankel [1992] Crim LR 822 Russell LJ, giving the judgment of this Court, expressed agreement with the judgment of Megaw LJ in Gallagher.

12.	In R v Wilmot (1989) 89 Cr App R 341 a defendant was cross-examined on the basis that his evidence was a recent fabrication. In directing the jury, the trial judge stated that they could take account of the fact that the defendant had not called his solicitor to give evidence in rebuttal of the allegation of recent fabrication. Giving the judgment of this Court, Glidewell LJ stated at p 352:

“We take the view, as Mr Boal submitted (it was a conclusion that we had already reached) that the occasions on which it is proper to make a comment of this kind will be rare. It would be difficult to lay down a hard and fast rule and we do not attempt to do so. In our view such a comment should only be made where there is a very strong case for suggesting that an account which a defendant is giving had recently been fabricated and where if it has not there would be another witness or other witnesses of any description who could substantiate the defendant’s story if it were true. Here there was such a very strong case. The suggestion which Mr Boal made of recent fabrication was one which was entirely justified in the circumstances and in our view it follows that the judge was entitled in his discretion to make the comment he did make.”

13.	In R v Weller [1994] Crim LR 856, the defendant said that he knew nothing about a document in his briefcase which bore his cohabitee’s name. It was suggested that she was involved in a racket without his knowledge. The trial judge, in her summing-up, said that there was no reason why a wife (as the cohabitee was referred to) could not give evidence for her husband and that the jury might have expected to see her in court to explain how she had got her husband into trouble. In the view of this Court, Farquharson LJ presiding, comment in this area has to be made with circumspection and reserve. In none of the decided cases considered by the Court was as strong a comment as this made and in none was it directly said that if there was any truth in the defendant’s story he would have been expected to call a particular witness. The Court could not see that a case in which that was appropriate could arise. The comment stepped beyond reasonable bounds and was likely to dilute or neutralise the judge’s correct directions as to the burden of proof.

14.	In R v Forsyth [1997] 2 Cr App R 299, the jury sent to the judge a written question as to how they should approach the absence of a witness. Giving the judgment of this Court, Beldam LJ, at p 324B, stated:

“In the circumstances of this case, we consider that the judge should have warned the jury in strong terms against drawing any inference from the absence of Jason Davies as a witness. He should have told them that there was no obligation on the defendant to call him since the manner in which she had become involved in the disposal of the money had not been challenged. He should also have told them that they must decide the case on the evidence they had heard and not speculate what he might or might not have said had he given evidence.”

15.	More recently in R v Wright, transcript 20 December 1999, 2000 Crim LR 510 Kennedy LJ, giving the judgment of this Court, stated, at paragraph 14:

“For as long as any one of us can remember, everyone involved in criminal trials has recognised, or should have recognised, the dangers of a judge commenting on the defence failure to call a particular witness. It can so easily detract from what has been said about the burden of proof. In R v Wheeler (1967) 52 Cr App R 28, the trial judge had said that the defence were perfectly entitled to call a particular witness or not as they chose and their failure to call her ‘is a matter which you are fully entitled to take into account.’ In this Court, Winn LJ, at page 33, described that direction as ‘unfortunate and unhelpful’. He went on to say that ‘any repetition of such a reference in a case where a witness is not called by either side is undesirable’.”

16.	In a note in that case in the Criminal Law Review (also at p 510), Professor Sir John Smith expressed the opinion that the argument that the burden of proof is reversed is “bogus” but acknowledged the difficult policy considerations which arise when considering whether comment upon the failure to call a witness should be permitted. In our view the comment of the editors of Archbold (2001 edn, para 4/400), that “the authorities are not entirely consistent” is justified. 

17.	In the absence of guidance, juries will inevitably speculate first as to why an apparently relevant witness has not been called, and secondly, as to what evidence that witness might have given had he been called. There will be situations in which the jury are entitled to ask themselves why the defence have not called a witness, as acknowledged in Gallagher and Wilmot. A universal requirement to direct the jury that they must not speculate as to why a witness has not been called might, as between prosecution and defence, work unfairness in some situations. On the other hand, to give no direction may be to invite speculation and thereby to work injustice. To comment adversely may work injustice to the defence because there may be a good reason, but one which in some circumstances it would be unfair to disclose to the jury, such as previous convictions which may damage the defendant by association, why the witness has not been called. Moreover, there may be an issue between prosecution and defence as to whether a witness is available. The judge cannot be expected to try an issue as to availability before deciding whether or not to comment on the failure to call the witness. 

18.	There is no simple answer to the problem and much depends on the judge’s sense of fairness in the particular situation. In our minds, (as of those of the Court in Wright) the dangers of making adverse comments and of failing to warn the jury not to speculate will usually be the paramount consideration. On the other hand, now that a defendant’s failure to give an explanation in interview or his failure to disclose his case in advance may be the subject of comment, the case for permitting comment on failure to call an available and obviously relevant witness may be stronger. The absence of power to comment would be an encouragement to dishonest evidence naming persons alleged to know of relevant events, if they can be named in the certain knowledge that the jury will be directed not to speculate on why they have not been called. 

19.	If comment is made, while we note the logical force of Sir John Smith’s comment that the issue has no bearing on that of burden of proof, a reference to the burden of proving the case remaining on the prosecution may in some situations be appropriate. Moreover, a judge who is proposing to make adverse comment upon the failure to call a witness should first invite submissions from Counsel in the absence of the jury.

20.	Because the two grounds of appeal are interwoven in relation to comment on absence of evidence from the appellant’s solicitor, it is appropriate  to mention section 34 of the Criminal Justice and Public Order Act 1994. Section 34(2)(d) provides:

“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.”

The failure there referred to is the failure to mention at an earlier stage a fact relied on by the appellant in his defence (section 34(1)(a)). The correct approach to the subsection was stated in this Court by Lord Bingham CJ in R v Argent [1997] 2 Cr App R 27 at 33D:
“It is for the jury to decide whether the fact (or facts) which the defendant has relied on in his defence in the criminal trial, but which he had not mentioned when questioned under caution before charge by the constable investigating the alleged offence for which the defendant is being tried is (or are) a fact (or facts) which in the circumstances as they actually existed the actual defendant could reasonably have been expected to mention.

Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as that he was tired, ill, frightened, drunk, drugged, unable to understand what was going on, suspicious of the police, afraid that his answer would not be fairly recorded, worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.”

The need for a careful direction to the jury in relation to drawing an adverse inference was underlined by the European Court of Human Rights in Condron v The United Kingdom [2000] Crim LR 679.

21.	The relevant passages in the summing-up in the present case are these:

“Well, this defendant in court has relied upon an account of the incidents concerning count 2 about which he chose to make no comment to the police. He has in effect said nothing was said to bribe Mr Lowe, but more importantly, you may think, that far from trying to bribe the witness, Mr Lowe tried to blackmail him into paying first £2,000 and then £12,000, otherwise he would say to the police that Mr Khan had attempted to bribe him. A serious allegation, you may think, which is now relied upon and about not a word which was spoken when the police interviewed him, nor indeed was it mentioned in the piece of paper which was handed in at the time.

A failure to mention facts he now relies upon cannot of its own prove guilt, but depending on the circumstances you may hold it against him as some additional support for the prosecution case. You are not bound to do so, it is for you to decide whether it is fair to do so in the circumstances. You have been invited by Mr Ross not to hold this failure to mention what he now says to you because he had produced the document denying the allegations. Mr Khan said that he never thought to put it in that document that Mr Lowe had attempted to blackmail him, and Mr Ross says that he received legal advice. Of course, the law is the law. The law is as I have described to you, and the solicitor in question is supposed  and expected to understand what the law says. It is a matter for you to decide, in all the circumstances in the case whether or not you think that he was or may have been advised not to say anything. You have only heard that in respect from Mr Khan, you have heard nothing from the solicitor who supposedly gave him the advice. You take all these matters into account. The prosecution say to you the production of the document is no substitute for a question and answer session in interview in which the officer contests the account. Say the prosecution, we would then have known whether he had raised the question of blackmail at the time or whether or not it is something that he raised afterwards as a fabricated defence. The defence say to you, on the contrary. Mr Khan says, ‘the police had not believed me the first time round and I did not think they were going to believe me the second time, so I did not bother to mention it.’ Those are the two sides of the same coin.

… the prosecution therefore say the defendant has made up that the agreement was signed at the house in order to show how Mr Lowe knew that Mr Khan had a flick knife. Not so, say the defence; ‘it was signed in my house and what is more a witness was present.’ We have not heard from the witness, whose name I believe was Plozak, have we, as a witness in this case? No reason, for example, of ill-health for his absence from the witness box, disappearance, of being abroad or whatever as being advanced for his absence from the witness box.”

22.	The learned Recorder later summarised the appellant’s evidence as to the injuries he had sustained. He added:

“‘… I didn’t see a doctor because my wife is a nurse; she attended to me. The injury to the groin, I did see a doctor when the swelling would not go down. And there were other problems; my sex drive was affected by the kick, I could not get an erection. I believe I had swelling in my testicle area when I saw the doctor.’

We have not heard from any doctor as to when he started swelling and you may think such evidence would have assisted you, if indeed it existed.”

At the end of the summing-up, Counsel addressed the judge, in the absence of the jury, as to the comment about Mr Plezaks. The judge further directed the jury:

“Members of the jury, I made during the course of my summing-up a comment which I had said to you earlier was a matter for you, whether you accepted or rejected it, and all matters of fact were for you. The comment that I am referring to is the absence from the witness box or Mr Plozaks. Whether that is a valid comment is entirely a matter for you, but I do not intend to leave you with the impression that failure to call that witness is necessarily of importance, because there may be a valid reason for not calling him. No reason has actually been advanced for not calling him; no evidence has been called, but of course it may have been a tactical decision on the part of counsel not to do so. That is all I wish to say in addition to what I have said to you a moment ago.”

23.	For the prosecution, Mr Connolly submits that in each case the comment was justified. The relevance of Mr Plezaks was not known until the trial began and the relevance of the doctor’s evidence only when the appellant gave evidence. In each case, it would have been open to the appellant to give an explanation in evidence as to why the witnesses would not be called. Mr Plezaks was, it appears, at Court during the hearing though this was not in evidence. The direction on section 34 was favourable to the appellant in that it was put on the basis that the issue should be decided in his favour if the jury accepted that he had been advised by his solicitor not to say anything. 

24.	This was a case with a stark conflict of evidence between the complainant and the appellant. We have come to the conclusion that the repeated comments upon the absence of evidence from the potential defence witnesses amounted to unfairness in the circumstances. We bear in mind that the matter had not been ventilated at the trial, either in the course of evidence or by way of submissions from counsel. The appellant had not been questioned about their availability. As put, the references both to the solicitor and to Mr Plezaks amounted to strong adverse comment. The question whether to make comment is a difficult one, for reasons given earlier, but in the context of this trial and the way it had been conducted, the comment should not have been made.

25.	Moreover, the two passages involving the solicitor, read together constituted a misdirection on section 34. The Recorder may have been trying to be helpful to the appellant when stating that the decision not to call the solicitor may have been “a tactical decision on the part of counsel not to do so”. Mr Connolly accepts, however, that the reference to a “tactical decision” would have been better unsaid.

26.	The vital question, whether “in all the circumstances existing at the time he [the appellant] could reasonably have been expected to mention them” [the allegations of blackmail] was never expressly put to the jury. As Lord Bingham CJ stated in Argent (p 36A) the jury is concerned with “the reasonableness of the appellant’s conduct in all the circumstances which the jury have found to exist. One of those circumstances, and a very relevant one, is the advice given to a defendant”. The further reference to the absence of the solicitor and in particular the reference to a tactical decision by counsel was a further distraction in the circumstances of this case from consideration of the relevant issue.

27.	Mr Connolly submits that notwithstanding any misdirections, the case against the appellant was a strong one and the verdict was in any event safe. We are unable to accept that. In our judgment, the verdict was unsafe by reason of the presence in the summing-up of the comments to which we have referred. Their effect is cumulative and unfair to the appellant. It is not necessary to the decision in this case to analyse further what section 34 direction should be given in the light of Condron.

28.	It was for these reasons that, at the conclusion of the hearing, the appeal was allowed and the conviction quashed. A retrial was directed.

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LORD JUSTICE PILL: Are there any applications?
MR CONNOLLY: My Lord, there is an application.  I appear again today on behalf of the respondent.  My learned friend Miss Gabay appears on behalf of the appellant. The court ordered, in fact directed, that the defendant be arraigned on a fresh indictment within 28 days of the hearing of the appeal.  In fact the case was not listed until 29 days after the hearing.  On that day the defendant was not present because he had been admitted as an inpatient in the Lakeside Mental Health Unit, so that he was not going to be available to be arraigned in the circumstances in any event.  The case was listed for a further hearing on 23rd March for arraignment to take place, it being understood that he would be out of hospital by that time, so that he could be arraigned and in any event the case was fixed for trial on the 29th day so that no time would be lost.  The appellant of course was not arraigned during the period directed by this court and my application is for leave to arraign him within ‑ it would in fact still be within the two month period, under section 8.
LORD JUSTICE PILL: Yes. Miss Gabay?
MISS GABAY: My Lords, I concede immediately that the appellant can still be arraigned within the statutory time. 
LORD JUSTICE PILL: That was my first reaction.  I am not sure our 28 day order has any effect because on looking at the statute there is a statutory two month period. Do you dispute that?
MISS GABAY: My Lord, I cannot dispute that.  The only point I can make is that clearly the appellant was aware of the direction made and had an expectation that he would be rearraigned in that time.  As it turned out it was not possible because he had been admitted to hospital but the Crown were not aware of that at that time and I cannot see that that has any direct relevance to the fact that the direction was not followed. However, because of the fact that the statutory time limit is two months I feel extremely limited in what I can say now.
LORD JUSTICE PILL: Yes, thank you.  Mr Connolly will you refer us to the statute.
MR CONNOLLY: I am not sure it is actually copied in Archbold.  It is section 8 of the Criminal Appeal Act.
LORD JUSTICE PILL: What page in Archbold?  It is paragraph 7‑113, page 943.
MR CONNOLLY: The power to order a retrial is under section 7 which is paragraph 7‑112.
LORD JUSTICE PILL: It is the supplementary provision which is relevant here. 
MR CONNOLLY: Really it is under section 1:
   	 "At the end of two months from the date of the order he may not be arraigned on an 	indictment preferred in pursuance of such a direction unless the Court of Appeal give 	leave."
I suppose that the direction that this court gave may be described as a direction of the earlier part of that section:
	"In pursuance of an order under section 7 of this Act shall be tried on fresh indictment 	preferred by direction of the Court of Appeal."
LORD JUSTICE PILL: Yes.  As I read that our order may have, one hopes, a salutary effect to achieve promptness and as we hear reasonable steps were taken, but in fact you have two months.  That is as I read it at present. So that the fact you were outside ‑‑ unless some form of estoppel can be set up, abuse of process, which Miss Gabay very sensibly in my view has not strenuously argued, then you do not need any further leave.
      What if we say that if leave, having expressed the view that you do not need leave, and having heard Miss Gabay, that if leave is required under section 8(1) or 1A then leave to arraign outside the 28 day period is granted.
MR CONNOLLY: Yes. 
LORD JUSTICE PILL: He has been arraigned now, has he?
MR CONNOLLY: My Lord, no, he has not because he was unwell.  There is a further hearing listed for 23rd March which would be within the two month period outside which there would need to be a further order of the court in the event perhaps that he becomes unwell again.  I understand he is well now and out of hospital so there is reason to believe he would be able to attend.
LORD JUSTICE PILL: Miss Gabay, what we propose to do is, as we have indicated, he must by statute be arraigned within two months but to indicate that the view of the court is that the 28 day limit does not have statutory effect so that leave is not required but if it is required then we grant it up to the two month period.
MISS GABAY: My Lord, yes.